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Conference paper

The balance of planning ideologies in Existing Use Rights cases at the New South Wales Land and Environment Court

Dispute resolution Land use Urban planning New South Wales
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apo-nid63255.pdf 528.45 KB

ABSTRACT: Planning appeals exist at the apex of the planning process. The impact of decisions of courts and tribunals extends well beyond the individual dispute. Indeed, planning appeal decisions have a profound impact on the day-to-day work of planners and local officials. Unfortunately, planning scholars have largely left examination of planning appeals to legal scholars, essentially divorcing the legal realm from the administrative realm. In this paper, I contribute to narrowing this gap in the literature by drawing on McAuslan’s (1980) notion of “planning ideologies” to examine the ideological conflicts inherent in progressing a planning dispute into the legal realm – that is, into an arena where the public interest nature of planning encounters the traditional tendency of courts to protect private property rights. I focus on cases where the New South Wales Land and Environment Court has considered “existing use rights,” which protect private property owners when a new planning regulation makes their formally lawful use of their land unlawful. Using a selection of cases, I investigate how the Court balances the traditional tendency to protect private property rights by liberally interpreting existing use rights with the public interest desire of government to limit the conditions under which someone can continue a use that is prohibited. Given the influence that the Land and Environment Court decisions have over development assessment decisions at the local level, knowing this balance adds an essential piece of the puzzle that is the planning process.

Publication Details
Peer Reviewed:
Access Rights Type: