Part 16Disputes, reviews and appeals

Part 16—Disputes, reviews and appeals Division 1—General rights of review and appeal 201—Interpretation In this Division— prescribed matter, in relation to an application for a development authorisation, means— (a) any assessment, request, decision, direction or act of a relevant authority under this Act that is relevant to any aspect of the determination of the application; or (b) a decision to refuse to grant the authorisation; or (c) the imposition of conditions in relation to the authorisation; or (d) subject to any exclusion prescribed by the regulations, any other assessment, request, decision, direction or act of a relevant authority under this Act in relation to the authorisation. 202—Rights of review and appeal (1) The following applications or proceedings may be made or brought under this Division: (a) the owner of any land constituting a place that has been designated in the Planning and Design Code as a place of local heritage value may appeal to the Court against the decision to make the designation; (b) a person who has applied for a development authorisation may, in respect of a prescribed matter— (i) in a case where the application was made to an assessment manager appointed for an assessment panel and the assessment manager was acting as a relevant authority— (A) apply to the assessment panel for a review of a prescribed matter; or (B) appeal to the Court against a prescribed matter; or (ii) in any other case—appeal to the Court against a prescribed matter; (c) a person who, after making an application under paragraph (b)(i)(A), is dissatisfied with the outcome of the review, may appeal to the Court against a decision of the assessment panel on the review; (d) a person who is entitled to be given a notice of a decision under section 110(6) in respect of development classified as restricted development by the Planning and Design Code may appeal to the Court against the decision; (e) a person who has applied to a council for a certificate of occupancy or an approval to occupy a building on a temporary basis may appeal to the Court against a refusal by the council to grant the certificate or to give the approval; (f) a person who is a party to a dispute relating to— (i) the effect of the Building Rules in specific circumstances; or (ii) the manner in which the provisions of the Building Rules are, or ought to be, carried into effect; or (iii) whether or not an application for building consent in relation to a development that is at variance with the Building Rules should be granted in a particular case; or (iv) whether the requirements of the Building Rules in any matter relating to building work have been satisfied in a particular case, or what is necessary for the satisfaction of those requirements; or (v) the construction of a party wall or the proportion or amount of the expense to be borne by the respective owners of premises separated by a party wall; or (vi) any other prescribed matter, may apply to the Court for determination of the dispute; (g) a person who can demonstrate an interest in a matter that is relevant to the determination of an application for a development authorisation by a relevant authority under this Act by virtue of being an owner or occupier of land constituting the site of the proposed development, or an owner or occupier of adjacent land, may apply to the Court for a review of the matter with respect to a decision under this Act as to the nature of the development under Part 7 Division 2 Subdivision 1, Subdivision 2 or Subdivision 3. (h) proceedings that a person is authorised to bring before the Court by the regulations. (a) an application that involves a dispute relating to a matter referred to in subsection (1)(e) or (f) (and no other matter) is made to the Court; or (b) an appeal is commenced before the Court in any case prescribed by the regulations for the purposes of this paragraph, the matter must, in accordance with the Rules of the Court, be referred to a commissioner or commissioners of the Court acting as a building referee or building referees under section 206. (3) A right of review under subsection (1)(g) does not limit or restrict the ability of an applicant for the relevant development authorisation to institute an appeal under subsection (1)(b). (4) Subsection (1) does not— (a) derogate from any other provision of this Act that confers a right to apply to the Court in specified or prescribed circumstances; (b) derogate from any other provision of this Act that prevents or restricts a right to apply to the Court in specified or prescribed circumstances. (5) If an application relates to the decision, direction, act, consent, approval, order or determination of a person or body acting in pursuance of delegated powers, the respondent is the principal and not the delegate. 203—Application to assessment panel (1) An application to an assessment panel for review of a prescribed matter under this Division in a case where an assessment manager acted as a relevant authority must be made in the prescribed manner and form and must be made within 1 month after the applicant receives notice of the decision constituting the prescribed matter unless the assessment panel, in its discretion, allows an extension of time. (2) On an application under subsection (1)— (a) the assessment panel may adopt such procedure as the assessment panel thinks fit; and (b) the assessment panel is not bound by the rules of evidence and may inform itself as it thinks fit. (3) Without limiting subsection (2)— (a) the assessment manager must, on a request made by the assessment panel, furnish to the assessment panel any application, documents, written submissions, reports, plans, specifications or other documents lodged with, or received by, the assessment manager in relation to the matter, and any other relevant material requested by the assessment panel; and (b) the assessment manager must, on a request made by the assessment panel, furnish a report on any aspect of the subject‑matter of the review; and (c) the assessment panel may examine anything submitted under paragraph (a) and consider any report provided under paragraph (b) and draw any conclusions of fact it considers proper. (4) An assessment panel may, on a review under this Division— (a) affirm the decision being reviewed; or (b) vary the decision being reviewed; or (c) set aside the decision being reviewed and substitute its own decision, and any decision of an assessment panel will then have effect according to its terms. 204—Applications to Court (1) An application to the Court must be made in a manner and form determined by the Court, setting out the grounds of the application, and, unless otherwise specifically provided under another provision of this Act, must be made within 2 months after the applicant receives notice of the decision to which the application relates unless the Court, in its discretion, allows an extension of time. (2) Subject to subsection (3), an application under subsection (1) must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (and the provisions of that Act will then apply in relation to the application). (3) Subsection (2) does not apply— (a) in a case where the matter is referred to a building referee or building referees under section 206; or (b) in any case, or case of a kind, prescribed by the regulations. 205—Powers of Court in determining any matter (1) The Court may, on hearing any proceedings under this Act— (a) confirm, vary or reverse any decision, assessment, consent, approval, direction, act, order or determination to which the proceedings relate; (b) affirm, vary or quash any order, notice or other authority that has been issued; (c) order or direct a person or body to take such action as the Court thinks fit, or to refrain (either temporarily or permanently) from such action or activity as the Court thinks fit; (d) if it appears to the Court to be appropriate to the subject of the proceedings, order— (i) that a building (or any part of a building) be altered, reinstated or rectified in a manner specified by the Court; (ii) that a party to the dispute remove or demolish a building (or any part of a building); (e) if appropriate in the circumstances of the proceedings—make any determination or declaration, or grant any other remedy or relief, as the Court thinks fit, including so as to grant a development authorisation; (f) make any consequential or ancillary order or direction, or impose any condition, that the Court considers necessary or expedient. (2) The following provisions apply in connection with the exercise of the Court's jurisdiction in any proceedings under this Act: (a) subject to paragraph (b), the Court should only seek to deal with and resolve those issues in dispute between the parties and should not, unless the Court considers it to be necessary or appropriate to do so, consider any aspect of the decision, assessment, consent, approval, direction, act, order or determination that is not being challenged; (i) a person who has applied for a development authorisation is appealing against a refusal to grant the authorisation; or (ii) a third party is appealing against a decision to grant a development authorisation, the Court may (if the Court thinks fit) proceed to consider the matter de novo (adopting such processes and procedures as it thinks fit and taking into account any material that was before the relevant authority when it refused to grant the authorisation and such other evidence or material as the Court thinks fit); (c) the Court may, in dealing with an application from a person to be joined as a party to the proceedings (other than the Crown, a relevant authority applying under section 122, or a person who was entitled to be given notice of a decision in prescribed circumstances (if relevant)), determine not to grant the application— (i) on the ground that the Court is not satisfied that the person has a special interest in the subject‑matter of the application; or (ii) on the ground that, whatever the interest of the person may be, the Court is not satisfied that the interests of justice require that the person be joined as a party; or (iii) on any other ground determined to be appropriate by the Court. 206—Special provision relating to building referees (1) The commissioner or commissioners to whom a matter is referred under section 202 will determine the matter as a building referee or as building referees, who will, subject to the Rules of the Court, for the purposes of this provision, have the powers of arbitrators under the Commercial Arbitration Act 2011. (2) In addition to the other powers that a commissioner may exercise as a member of the Court under this Act, the commissioner or commissioners may— (a) refer any question of law to a Judge of the Court for determination; (b) require a party to furnish— (i) particulars of his or her case; (ii) documentary or other material relevant to the determination of the matter; (iii) such other information as the commissioner thinks fit; (c) give summary judgment (with costs) against any party who obstructs or delays the proceedings or who fails to attend or participate in the proceedings; (d) make a declaration as to the effect of the Building Rules in the particular case (which declaration will have effect according to its terms); (e) order that building work be carried out in a specified manner (being a manner that accords with the Building Rules or, if the commissioner or commissioners think fit, is at variance with the Building Rules but effectively attains the objects of this Act); (f) settle any dispute relating to a party wall. (3) No appeal lies from a decision of a commissioner under this section on a question of fact. Division 2—Initiation of proceedings to gain a commercial competitive advantage 207—Preliminary commercial competitive interest—see subsection (2); relevant proceedings means any proceedings before a court arising under or in connection with the operation of this Act including proceedings for judicial review, but not including criminal proceedings. (2) For the purposes of this Division, if the business of a person, or the business of an associate of a person (other than the proponent of the development), might be adversely affected by a particular development on account of competition in the same market, then the person will be taken to have a commercial competitive interest in any relevant proceedings that are related to that development. (3) For the purposes of this Division, the circumstances in which proceedings are related to a development include a situation where proceedings constitute a challenge to the Planning and Design Code, or to the amendment of the Planning and Design Code, that affects a development. (4) The regulations may provide that this Division does not apply in a circumstance or situation (or circumstance or situation of a prescribed class) specified by the regulations. 208—Declaration of interest (i) commences any relevant proceedings; or (ii) becomes a party to any relevant proceedings; and (b) the person has a commercial competitive interest in the proceedings, then the person must disclose the commercial competitive interest. (i) commences any relevant proceedings; or (ii) becomes a party to any relevant proceedings; and (b) the person receives, in connection with those proceedings, direct or indirect financial assistance from a person who has a commercial competitive interest in the proceedings, then both the person referred to in paragraph (a) and the person who provided the financial assistance referred to in paragraph (b) must disclose the commercial competitive interest. (3) A disclosure must be made to the Registrar of the relevant court and to the other parties to the relevant proceedings in accordance with any requirements prescribed by the regulations. (4) A person who fails to make a disclosure in accordance with the requirements of this section is guilty of an offence. 209—Right of action in certain circumstances (i) who is a party to the relevant proceedings related to a development; or (ii) who provides direct or indirect financial assistance to a party to any relevant proceedings related to a development, has a commercial competitive interest in the proceedings, or has an associate who has a commercial competitive interest in the proceedings; and (b) the outcome of the proceedings (including after taking into account any appeal) is that the development, or a development in substantially the same form, may proceed, then the proponent of the development is entitled to recover from the person (the defendant) and, if relevant, from any associate of the defendant, as a debt, an amount equal to the amount of any loss (including economic loss) that can be reasonably assessed as having been suffered by the proponent as a result of delays to the development on account of the proceedings if the court is satisfied that the defendant's sole or predominant purpose in pursuing the proceedings, or for providing financial assistance (as the case may be) was to delay or prevent the development in order to obtain commercial benefit for the defendant or an associate of the defendant. (2) A court before which proceedings are brought under subsection (1) may, if it considers that it is appropriate to do so, reduce any amount that would otherwise be recoverable under that subsection to take into account— (a) any delay in the relevant proceedings reasonably attributable to the actions of the proponent of the development or of some other party (other than the defendant, an associate of the defendant or a person who has received direct or indirect financial assistance from the defendant in connection with those proceedings); or (b) any other matter that it considers relevant in the circumstances of the particular case. (3) Without in any way limiting the manner in which the purpose of a person may be established for the purposes of subsection (1), a person may be taken to have pursued proceedings, or to have provided financial assistance to a party to proceedings (as the case may be) for a purpose referred to in subsection (1) notwithstanding that, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or of any other person or from other relevant circumstances.