Report No. 186
Section 23 refers to 'making of orders' and reads as follows:
Section 23: The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate."
In sections 24, 25 of Division 2 of Part 3, 'claim for compensation' (i.e. compulsory land acquisition) has also brought within the purview of the Court including determination of estate, interest and amount.
Sections 25B to 25D of Division 3 of Part 3 deal with orders of conditional validity for certain 'development consents'. It permits invalidation of consents to development for not taking steps or complying with conditions of the consent granted by the Minister under the Environmental Planning & Assessment Act, 1979.
Sections 26 to 28 in Division 2 of Part 4 refer to the 'Distribution of business among the Divisions' of the Court. These are:
(a) Environmental Planning and Protection Appeals Division.
(b) Local Government and Miscellaneous Appeals Division.
(c) Land Tenure, Valuation, Rating and Compensation Division.
(d) Environmental Planning and Protection and Development Contract Civil Enforcement Division.
(e) Environmental Planning and Protection Summary Enforcement Division and
(f) Environmental Appeals Division.
Section 29 in Division 3 of Part 4 permits the Court to sit at such places as the Chief Justice may direct. Section 30 vests the power to distribute business in the various Divisions of the Court, in the Chief Judge. Provision is made in section 31 for transfer from one Division to another.
What is of special significance is that section 33 states that the jurisdiction in classes 1, 2, 3 can be exercised by the Judge, or one or more commissioners (i.e. environmental planning and protection appeals (Class II) and land tenure, valuation, rating and compensation matters (Class III)).
But only a Judge according to section 33, can exercise jurisdiction under classes 4, 5, 6 (i.e. environmental planning and protection and development contract civil enforcement (class 4); environmental planning and protection summary enforcement (class 5); appeals from convictions relating to environmental offences (class 6)).
There is a special situation, referred to in section 33, that jurisdiction under section 16(1A)(i.e. ancillary matters) has to be exercised by a Judge but he may be assisted by one or more Commissioners in accordance with section 37. Under section 37, the jurisdiction under Class 1, 2, 3 can also be exercised by the Judg.- assisted by one or more commissioners. Various other provisions are made in section 37.
Section 34A refers to proceedings in Class I relating to Environmental Planning and Assessment Act of 1979. Section 34B refers to on-site hearin.- section 34C to arrangements in dealing with court-hearing matters; section 35 refers to Inquiries by Commission in cl. 3, section 36 refers to delegation to Commission by the Court in respect of matters falling under section 97 of Environmental Planning and Assessment Act, 1979. Under section 36(1A), the Government may, by Regulation, add to or alter or omit items in Schedule 2 or insert a new Schedule.
Section 37 refers to places where Commissioners sit with a Judge and the procedure relating thereto.
Section 38 states that proceedings in class 1, 2, 3 shall be conducted with as little formality and technicality as possible and with as much expedition. The Court is not bound to follow rules of evidence. It may obtain assistance of any person having professional or other qualifications relevant to any issue. Section 39 refers to power of Court of Appea.- which can take additional evidence. Various other details are referred to in other sub sections.
Section 39A refers to joinder of parties in appeals. Section 40 refers to additional powers of Cour.- protection of easements. Section 48 refers to procedure where defendant does not appear, section 49 as to what would happen if either party does not appear and section 50 as to what should happen if both parties appear. Section 51 gives power to consolidate cases; Section 52 to payment of costs, section 53 to enforcement of fines or orders. Section 55 to the effect of aiding, abetting, counseling or procuring commission of offences.
Finality of the Court's orders is referred to in Part 5 in secs. 56 etc. Under section 56 orders will be final except as stated in Division 2 of Part 5 or except in regard to criminal appeals.
Division 2 of Part 5 (sec. 56A) permits appeal to the Court in class 1, 2, 3 matters against the Commissioners. Otherwise appeals from classes 1, 2, 3 to the Supreme Court. Section 58 refers to powers to appellate Court including suspension, etc. Part 5A refers to 'Mediation and neutral evaluation' by the Court. Referral is only by consent of parties. Various details as to confidentiality etc. are referred to.
Part 6 of Division 2 deals with miscellaneous matters, e.g. proceedings to be in open Court, issue of process, costs which may be awarded by the Court but not by Commissioners, except with consent of Court; interest payable on deposits, vexatious litigants and transfer from Supreme Court, Rules, Regulations.
The above are broadly the provisions of the N.S.W. Act, 1979 regarding Environmental Courts. While certain broad features commend themselves to us, we find that the classification of cases and the proceedings into various classes appears to be quite complicated. In our view, a simpler method is necessary so far as procedure in the Indian Environmental Courts is concerned.