Living with neighbours is a given, whether you live in the heart of the CBD or the heart of outback Australia, there are always neighbours even when they’re far away. When we live in close quarters of our neighbours, this comes with challenges and sometimes a dispute or two. But not just your neighbours are who you might come in to contact with. If you’ve recently bought a property to do a remodel, or you own and need to update your home, you’ll also be brushing shoulders with your local council.
So, what might see you in the Land & Environment Court (LEC) and what must you consider before you decide to commence proceedings?
It is important that if your dispute is with a neighbour or something to do with their development, you should try meeting with them directly or raising the dispute with them before you approach a solicitor for advice or file any proceedings. Often people assume to have their issues resolved they have to go to court, but in most circumstances it’s easier (and cheaper) to speak to your neighbour first if possible.
Before you decide to resolve a dispute through the LEC, you should first consider the costs. The LEC is a specialised court with a similar standing to the Supreme Court, with similar costs to commence proceedings and complex procedures. When you need to commence proceedings, you need to consider those costs along with the costs you’ll incur from your solicitor, any witnesses or experts you may need, and how this might affect any work you’re intending to do to your property which might be the subject of the dispute.
The LEC consists of 8 classes which are:
- Class 1 – Environmental, Planning and Protection appeals: These represent 61% of the courts caseload and consists of development appeals (both residential and other developments or objections) and other appeals which do not fit into other classes.
- Class 2 – Tree disputes and Local Government appeals: This class is for tree disputes between neighbours which seek remedies, restraints, or preventions. You may also use this class to resolve a dispute with a neighbour over pruning or removing hedges. Class 2 applications only make up 8% of the courts caseload.
- Class 3 – Valuation, Compensation, and Aboriginal land claims: Primarily this class deals with valuation objections and compensation claims. Aboriginal land claims are heard by a Judge with the assistance of a commissioner. 48% of claims in this class are for compensation.
- Class 4 – Judicial review and Civil Enforcement: usually used by government bodies, this class is used to remedy breaches of environmental laws or retrain those from breaching those laws. It is also used for judicial review of administrative decisions. Over 54% of matters in this class are initiated by local councils.
- Class 5 – Criminal Proceedings: as the name suggests, this class is used by government authorities to prosecute offences in relation to planning and environmental laws. These bodies include the Environmental Protection Agency, local government, Department of Planning, and the Natural Resources Access Regulator.
- Class 6 & 7 – Criminal Appeals from NSW Local Court: this class is less than 1% of the caseload for the LEC, however, it does oversee appeals over Local Court environmental offences.
- Class 8 – Mining Cases: these are disputes under the Mining Act 1992 and the Petroleum (Onshore) Act 1991 and hopefully, not something the average resident of the Shire is coming into contact with on a regular basis.
Primarily, residents of NSW will be initiating proceedings in Class 1 or 2, especially given it makes up nearly 70% of the LEC’s caseload.
A requirement of most proceedings in the LEC is that all parties undertake alternate dispute resolution (ADR). This is important to consider as you should not expect to be given a hearing date immediately when proceedings are filed. There are different types of ADR and the LEC will consider the most appropriate option depending on the proceedings and the issues. In Class 1 proceedings, almost 80% of disputes were resolved through ADR, and it is an important tool in getting to the core issue of disputes and assisting in the reduction of costs as a result of drawn-out litigation.
Finally, its important to consider the compromises you are willing to make and ensure you are open-minded through the dispute process. Matters can often settle “on the steps” meaning that right before a final hearing is to be had, a settlement is reached. This means you have incurred the costs of preparation, and it does not go ahead as the parties settle. It is best to approach ADR as constructively and collaboratively as possible to reduce the likelihood an on the steps settlement occurring.
If you have taken the above into consideration, and you need assistance with a dispute with a neighbour or over a development, development application, or wish to discuss your options when responding to enforcement orders from council, give us a call or book an appointment online to discuss your matter.
Remember, the contents of this article are not to be taken as legal advice. If you require assistance with your matter, please reach out to us or book an appointment through our website.
Seth Harlen
Solicitor
