The Resource Management & Planning Appeal Tribunal issued the following guide to the Public:
YOUR GUIDE TO THE RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL
APPEALING TO THE TRIBUNAL
The Tribunal hears appeals under the following Acts:
· Land Use Planning and Approvals Act 1993.
· Environmental Management and Pollution Control Act 1994.
· Cultural Heritage Act 1995.
· Living Marine Resources Management Act 1995.
· Marine Farming Planning Act 1995.
Those Acts state what decisions can be appealed and who may appeal.
LODGING AN APPEAL
To appeal a decision, complete and lodge a ‘Notice of Appeal’ with the Tribunal. Forms are obtainable from the Tribunal office.
Notices of Appeal under the Land Use Planning and Approvals Act 1993 must be lodged with the Tribunal within 14 days from the date Council’s decision was posted to you or otherwise served on you, or in the case of appeals under other Acts named above, within 14 days from the relevant decision.
A $50.00 fee applies on lodgement of your appeal.
JOINING AS A PART TO AN APPEAL
You may apply, in writing, to join as a party to an appeal if your interests are affected by the decision appealed against. You may be restricted to arguing only those points directly raised by the original appellant.
Apply to join before the directions hearing; if you do so later it may cause cost and delay.
A directions hearing is a preliminary meeting of the parties either before the Registrar or a Tribunal member. It is usually held within two weeks of lodgement of the Notice of Appeal.
Directions will be given as to the supply of all evidence to each party and the Tribunal prior to the full hearing.
At this hearing you may request documents from the other parties to assist in structuring your own case. Directions will be given as necessary.
One purpose of the directions hearing is to see whether the appeal can be resolved by mediation or whether it will need to go to a full hearing.
Mediation conferences are conferences with the Registrar to allow all the parties to find their own mutually acceptable solution to an appeal, instead of having one imposed upon them by the Tribunal.
Appeals and directions hearings are advertised in the public notices section of your local newspaper so that others whose interests are affected can attend and/or join as a party.
PREPARING FOR A FULL HEARING
In preparation for a full hearing, all evidence you wish to present in support of your case must be in written (proof) form.
PROOF OF EVIDENCE
A proof of evidence is a written statement of the evidence of any witness, including any expect witness.
* Ensure that your expert witness(es) include in the proof of evidence their relevant qualifications.
Evidence in support of your case may include photographs, video/audio tapes, plans or maps, and documents.
As a general rule evidence which has not been given as directed to all other parties is not allowed at the full hearing.
SEQUENCE OF PRESENTATION BY PARTIES:
· Firstly, the developer or active party · Secondly, the planning authority (Council) or decision making authority · Finally, any other parties to the appeal.
Each witness MUST be present at the hearing so that their evidence can be tested by cross-examination from opposing parties. Without the witness being present the proof of evidence may be disregarded.
As all parties and Tribunal members have been given the opportunity to read all the evidence prior to the hearing, there is no need for it to be read aloud at the hearing.
Each witness states their full name, address and occupation and then confirms (and if necessary corrects) their proof of evidence.
Following the evidence of each witness, the Chairperson invites opposing parties’ representatives and Tribunal members to ask questions of that witness.
*ONLY AS QUESTIONS - DO NOT MAKE STATEMENTS*
When asking questions directly of the witness, it is best to keep the questions short, relevant and concise and give ample time for a response. If you have photographs, a statement or any other evidence which directly contradicts what the witness has stated or was in his/her proof of evidence, you may present these to the witness and then ask him/her questions about that evidence.
WHEN CROSS-EXAMINING YOU SHOULD NOT
make comments or statements, there will be an opportunity to make these comments when summing up your case; ONLY ASK QUESTIONS;
question the witness on matters which are outside his/her scope of knowledge;
question a witness on matters which are not relevant to the issues before the Tribunal, such as how/why the Councillors may have acted;
ask more than one question at a time;
feel that you have to cross-examine. Often other parties may ask a question that you were going to ask the witness. Don’t ‘flog a dead horse’.
Following cross-examination the party who called the witness is invited by the Chairperson to re-examine the witness. Re-examination of the witness enables clarification of issues raised during cross-examination, not new matters.
Final submissions enable parties to summarise their case to the Tribunal. The Chairperson will direct the order of final submissions. If there is insufficient time the Chairperson may request that the final submissions be given in writing.
INSPECTION OF THE SITE
In most cases the Chairperson and Tribunal members inspect the site, generally without the parties.
The Tribunal usually reserves its decision and posts it to the parties in approximately 14 days. The Tribunal must hear and determine an appeal within 90 days of it being lodged. Once the Tribunal has handed down its decision, it has no further jurisdiction and, subject to certain exceptions set out in the relevant Act, cannot enter into any correspondence with the parties in relation to the decision.
Can I appeal the decision of the Tribunal? You may appeal to the Supreme Court from a decision of the Tribunal, but only on a question of law, not of fact. The Tribunal will not be involved in that appeal as a party.
APPLICATION FOR COSTS
Parties may make an application for cost* within 14 days from the date of the decision. Factors the Tribunal must take into account when deciding whether one party should pay another’s costs are;
· the result of the appeal, · whether frivolous or vexatious issues have been raised, · whether the appeal hearing has been unnecessarily or unreasonably prolonged or its costs increased, and · the capacity of parties to pay any order for costs.
* ‘Costs’ are the professional fees and expenses directly incurred in the conduct of the appeal, not the cost of parties’ lost time.
OTHER HELPFUL INFORMATION
Should I be represented by a lawyer, planner or other person?
To help you decide, consider whether you are able to present your case from beginning to end (from the completion of the Notice of Appeal to the full hearing). If there are any areas where you care unsure or need clarification it may assist you to seek some advice.
The Tribunal has established a register of professional experts who are prepared to provide advice in the area of their expertise on a first consultation basis without charge. Should this be sought please contact the Tribunal staff.
Who will be conducting the hearing? For a full hearing the Tribunal is normally composed of a Chairperson and two other members. The Chairperson is usually a legal practitioner and the remaining members are specialists with knowledge in a particular field, for example architects, engineers, town planners.
How should I address the Chairperson, Tribunal members or Registrar and should I stand?
When addressing the Chairperson or Tribunal Members it is not necessary to stand. The Chairperson should be addressed as “Mr/Madam Chairperson” or “Sir/Madam”. Tribunal members should be addressed as, ‘Sir/Madam’, or alternatively, by the title and surname. The Registrar should be addressed as ‘Registrar’.
Civil Enforcement Proceedings Please refer to the relevant brochure.
ANY FURTHER ENQUIRIES
If you have any further enquiries you are welcome to telephone the office of the Tribunal. The Registrar and staff will assist you in procedural matters but are unable to give legal advice or to advise upon the merits or prospects of success of an appeal.
The Appeal Tribunal is located on the 3rd floor of the TGIO building, 144-148 Macquarie Street, Hobart
Our telephone number is: (03) 6233 6464
Our facsimile number is: (03) 6224 0825
Take advice on whether you should be represented or not, try to mediate.
HOW WE ASSIST:
We can advise whether you need expert witnesses to assit your case and source such professionals for you.