Court Jurisdiction
 Class 1 Class 2 Class 3 Class 4 Class 5 Class 6 Class 7 Class 8 Cross-Vested Jurisdiction Appealing a Court Decision
The Land and Environment Court Act 1979 (the Court Act) establishes the Court as a superior court of record and vests power in the Court to determine a wide range of environmental, development, building and planning disputes. The Court is a specialised court that has the benefit of a combined jurisdiction within a single court.
Sections 17-21C of the Court Act set out the legislation pursuant to which the Court has jurisdiction, and divides that jurisdiction into eight classes. Select this link for a list of all the legislation over which the Court has jurisdiction. The Court does not have the power to determine issues outside of its jurisdiction, but it has the power to resolve issues ancillary to a matter falling within its jurisdiction (s 16(1A) of the Court Act).
Proceedings in the Court fall into three general categories, reflecting the mixed jurisdiction of the Court:
- Administrative or merits review, where the Court re-hears the merits of an administrative decision by the original decision maker. The Court’s merits review function enables it to review the decisions of government bodies and officials in a range of planning and environmental matters. In exercising its merits review function, the Court stands in the shoes of the original decision maker in order to consider the application on its merits. In that sense, the Court operates as a form of administrative tribunal. The appeal is by way of rehearing and fresh or additional evidence may be relied upon.
- Enforcement of environmental and planning legislation. This can be done by:
- Civil enforcement - proceedings commenced by government authorities to remedy or restrain breaches of planning and environmental laws (Class 4);
- Judicial review - proceedings lodged by individuals or companies for judicial review of administrative decisions under planning or environmental laws (Class 4); or
- Criminal enforcement - proceedings for offences that are brought against an individual or a company, whether from a breach of threatened breach of environmental laws (Class 5).
- Appeal proceedings - the Court also hears appeals against convictions or sentences for environmental offences from the Local Court (in Classes 6 & 7), and appeals from decisions of commissioners of the Court under s56A of the Court Act.
Under the Court Act, disputes are divided into 8 classes as follows:
Class 1 - Environmental planning and protection appeals
Proceedings in Class 1 involve merits review appeals. The Court in the appeal sits in the place of the original administrative decision maker and re-exercises the administrative decision-making functions. The rules of evidence do not apply and fresh or additional evidence may be relied upon. The decision of the Court is final and binding and becomes that of the original decision-maker.
Proceedings in Class 1 include merit appeals under a range of environmental legislation set out in s 17 of the Court Act, and are often appeals under the Environmental Planning and Assessment Act 1979 against council orders and council's determination of a development application. This Class also includes appeals by third parties or objectors relating to the restricted number of developments classified as "designated development" under the Environmental Planning and Assessment Act 1979.
When a Class 1 appeal is filed with the Court, it is allocated a date for a directions hearing before the Registrar. The directions hearing may take the form of an in court hearing, a telephone hearing or an eCourt hearing. At the directions hearing, the Registrar will review the matter and make appropriate directions for the orderly, efficient and proper preparation of the matter for resolution by the appropriate dispute resolution process. The appropriate dispute resolution process may be a conciliation/hearing, mediation or neutral evaluation or it may be a process by the Court hearing and disposing of the matter either at an on-site hearing or a court hearing.
For more information concerning the practice and procedure governing Class 1 appeals, refer to the following:
Class 2 - Local Government miscellaneous appeals and applications; and tree dispute applications
Proceedings in Class 2 fall into two broad categories: first, merits review of administrative decisions of local or State government under the planning or environmental laws specified in s 18 of the Court Act and, secondly, applications under the Trees (Dispute Between Neighbours) Act 2006. The merits review proceedings in Class 2 include:
Where the appeal is a merits review, the Court in the appeal sits in the place of the original administrative decision maker and re-exercises the administrative decision-making functions. The rules of evidence do not apply and fresh or additional evidence may be relied upon.
Applications under the Trees (Dispute Between Neighbours) Act 2006 are original civil proceedings and are of two types:
- Applications to the Court to remedy, restrain or prevent damage caused, being caused or likely to be cause to property or to prevent a risk of injury to any person as a consequence of a tree.
- Applications under Part 2A for orders in relation to a hedge that severly impacts on a persons' views or access to sunlight.
When a Class 2 application is filed with the Court, it is allocated a date for a directions hearing before the Registrar. The directions hearing may take the form of an in court hearing, a telephone hearing or an eCourt hearing.
If the application is made under the Trees (Dispute Between Neighbours) Act 2006, the directions hearing is called a preliminary hearing. Preliminary hearings for tree disputes are held in a special list which is conducted once a month. At the preliminary hearing, the Registrar explores where the parties may be able to resolve the dispute between themselves. If the parties are not able to resolve the dispute, the Registrar will fix a final hearing date, usually not more than four to five weeks after the first court attendance. The Registrar will also make directions in preparation for the final hearing. For more information concerning Class 2 tree disputes, refer to the following:
At the directions hearing for other Class 2 matters, the Registrar will review the matter and make appropriate directions for the orderly, efficient and proper preparation of the matter for resolution by the appropriate dispute resolution process. The appropriate disputre resolution process may be a conciliation, mediation or neutral evaluation or it may be a process by the Court hearing and disposing of the matter either at an on-site hearing or a court hearing.
For more information concerning the practice and procedure governing Class 2 matters, refer to the following:
Class 3 - Land tenure, valuation, rating and compensation matters
Proceedings in Class 3 are of a range of different types and relate to appeals and applications arising under legislation specified in s 19 of the Court Act. Mostly, they involve merits review of decisions of State government but some involve original proceedings in the Court. Proceedings in Class 3 include:
Where the appeal is a merits review, the Court in the appeal sits in the place of the original administrative decision maker and re-exercises the administrative decision-making functions. The rules of evidence do not apply and fresh or additional evidence may be relied upon.
When a Class 3 application is filed with the Court, it is allocated a date for a directions hearing before the List Judge on a Friday. At the directions hearing, the List Judge will review the matter and make appropriate directions for the orderly, efficient and proper preparation of the matter for resolution by the appropriate dispute resolution process. The appropriate dispute resolution process may be a conciliation, mediation or neutral evaluation or it may be a process by the Court hearing and disposing of the matter either at an on-site hearing or a court hearing.
For more information concerning the practice and procedure governing Class 3 matters, refer to the following:
Class 4 - Environmental planning and protection
Class 4 proceedings include civil enforcement proceedings to remedy or restrain breaches of planning and environment laws, and proceedings lodged for judicial review of administrative decisions made under planning or environmental laws.
The legislation pursuant to which proceedings can be brought for civil enforcement or judicial review is set out in s 20 of the Court Act.
In civil enforcement proceedings, the court will consider whether there is, or has been, a breach of the relevant legislative provision and what orders should be made to remedy the breach and prevent the breach from continuing.
In judicial review proceedings, the Court considers the validity of the decision made by the administrative authority. This means that the Court will consider whether the decision maker had the power to make the decision, and whether the decision was made in accordance with the relevant legal procedures. In a judicial review, the Court does not stand in the shoes of the original decision maker and the Court will not consider the merits of the original decision. Where the Court decides that the decision maker did not have the power to make the original decision or that the decision maker did not follow the proper procedures, the Court may make a declaration that the original decision was invalid.
When a Class 4 application is filed with the Court, it is allocated a date for a directions hearing before the List Judge on a Friday. At the directions hearing, the List Judge will review the matter and make appropriate directions for the orderly, efficient and proper preparation of the matter for resolution by the appropriate dispute resolution process. The appropriate dispute resolution process may be mediation or neutral evaluation or it may be a process by the Court hearing and disposing of the matter either at an on-site hearing or a court hearing.
For more information concerning the practice and procedure governing Class 4 matters, refer to the following:
Class 5 - Environmental Planning and Protection - Criminal Enforcement
Proceedings in this class are in the criminal jurisdiction of the Court. Proceedings in Class 5 involve prosecutions for offences against various planning or environmental laws. The laws are specified in s 21 of the Court Act.
The Court hears and disposes of these proceedings in a summary manner (by a judge alone). The Court has a wide range of sentencing options depending on the offence concerned.
In order to commence proceedings in Class 5, the prosecutor prepares a summons and the affidavits which establish a prima facie case. If a prima facie case is established, the Duty Judge issues the summons which can then be filed in the Registry.
Once the Class 5 proceedings have been filed in the registry, a date is allocated for a directions hearing before the List Judge on a Friday. At the directions hearing, a plea will be entered and a timetable made to prepare the proceedings for a hearing.
Class 6 - Appeals with respect to environmental offences
These are appeals brought under sections 31 or 42 of the Crimes (Appeal and Review) Act 2001 with respect to environmental offences in the Local Courts. Such appeals are by way of re-hearing, and include:
- Appeals against convictions following a plea of not guilty;
- Appeals against severity of sentence;
- Appeals by the Prosecutor against the inadequacy of the sentence;
- Appeals by the Prosecutor against an order for costs;
- Appeals by the Prosecutor against an order dismissing the proceedings; and
- Appeals by the Prosecutor against an order staying the proceedings.
Once Class 6 proceedings have been filed in the registry, a date is allocated for a directions hearing before the List Judge on a Friday. At the directions hearing, the List Judge will make directions in order to prepare the appeal for hearing.
Class 7 - Applications for leave to appeal with respect to environmental offences
These are applications for leave to appeal brought under sections 32 or 43 of the Crimes (Appeal and Review) Act 2001 with respect to environmental offences in the Local Courts. Such appeals are by way of re-hearing, and include:
- Applications for leave to appeal a conviction following a plea of guilty;
- Applications for leave to appeal a conviction entered in absence of the offender; and
- Applications for leave to appeal orders made in committal proceedings or interlocutory orders made in summary criminal proceedings.
Once Class 7 proceedings have been filed in the registry, a date is allocated for a directions hearing before the List Judge on a Friday. At the directions hearing, the List Judge will make directions in order to prepare the appeal for hearing.
Class 8 - Mining Jurisdiction
The Court has jurisdiction in Class 8 to hear disputes arising under the Mining Act 1992 and the Petroleum (Onshore) Act 1991.
The Court exercises the jurisdiction formerly exercised by the Mining Wardens' Court. Click here for information on the mining jurisdiction.
Cross Vested Jurisdiction
Proceedings may be transferred between the Supreme Court and the Land and Environment Court.
In civil proceedings, there is capacity for either the Supreme Court or the Land and Environment Court to transfer proceedings to the other court if it is more appropriate for the proceedings to be heard by the other court (see s 149B of the Civil Procedure Act 2005). The court to which the proceedings are transferred is vested by the transfer with all of the jurisdiction of the transferor court with respect to the proceedings (s 149E of the Civil Procedure Act 2005).
For proceedings in Classes 5-7, the Supreme Court also has the power to transfer any proceedings commenced or purporting to have been commenced in the Supreme Court to the Land and Environment Court if the Supreme Court is of the opinion that the proceedings could or should have been commenced in the Land and Environment Court (s 72 of the Court Act).
Appealing a decision of the Court
A party can appeal a Commissioner's decision in Classes 1, 2 and 3 proceedings to a Judge of the Land and Environment Court pursuant to s 56A of the Court Act. However such an appeal is confined to a question of law and does not involve a review of the decision on the merits.
A decision of a judge following a s 56A appeal can be the subject of an appeal to the Court of Appeal, but only by leave of the Court of Appeal. An appeal can also be lodged against the decision of a judge in Class 4 proceedings to the Court of Appeal.
A decision by a judge in criminal proceedings, in Classes 5, may be appealed to the Court of Criminal Appeal (ss 5AB, 5BA Criminal Appeal Act 1912)
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