Land and Environment Court Act 1979

This Act may be cited as the Land and Environment Court Act 1979.

This section and section 1 shall commence on the date of assent to this Act.

Except as provided by this section, this Act shall commence on—

such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette (being a day that is not later than the day referred to in paragraph (b)), or

if a day is not appointed and notified under paragraph (a)—the day appointed and notified under section 2(2) of the Environmental Planning and Assessment Act 1979.

Section 71 shall commence on the day appointed and notified under section 2(2) of the Environmental Planning and Assessment Act 1979.

No proceedings shall be commenced in the Court before the day appointed and notified under section 2(2) of the Environmental Planning and Assessment Act 1979.

In this Act, except in so far as the context or subject-matter otherwise indicates or requires—

Chief Judge means the Chief Judge of the Court.

Commissioner means a person appointed as a Commissioner of the Court under Division 3 of Part 2.

Court means the Land and Environment Court constituted under this Act.

court hearing matter—see section 34A(5).

functions includes powers, authorities and duties.

Judge means a Judge of the Court.

mandatory judicial retirement age means the maximum age at which a Judge is required by law to retire.

Note.

Section 44 of the Judicial Officers Act 1986 provided for a maximum retirement age for Judges of 72 years before its amendment by the Justice Legislation Amendment Act (No 3) 2018.

Section 44 of the Judicial Officers Act 1986, as amended, has increased the maximum retirement age for Judges to 75 years. Clause 9 of Schedule 6 to the Judicial Officers Act 1986 provides that the new retirement age does not apply to Judges holding office who were appointed before the amendments commenced unless they consent to the change applying to them as required by section 55(2) of the Constitution Act 1902. The retirement age of 72 years continues to apply to Judges who do not consent to the increased retirement age applying to them.

on-site hearing matter—see section 34A(3).

practice note means a practice note issued under section 76.

Registrar means the Registrar of the Court.

regulations means regulations for the time being in force under this Act.

rules means rules of the Court.

A reference in this Act to the exercise of a function includes, where that function is a duty, the performance of that duty.

There is hereby constituted a superior court of record to be known as the Land and Environment Court.

There shall be a seal of the Court, and any document required by or under this or any other Act or law to be sealed or stamped with the seal of the Court shall be so sealed or stamped.

All proceedings in the Court, and all business arising out of any such proceedings, shall, subject to this Act, be heard and disposed of before a Judge, who shall constitute the Court.

Subsection (1) does not affect the provisions of this Act and the rules concerning the hearing and disposal of proceedings and business before one or more Commissioners or other officers of the Court.

The Court shall be composed of a Chief Judge appointed by the Governor and such other Judges as the Governor may from time to time appoint.

The Governor may, by commission under the public seal of the State, appoint any qualified person to be a Judge.

A person is qualified for appointment as a Judge if the person is under 70 years of age and—

holds or has held a judicial office of this State or of the Commonwealth, another State or a Territory, or

(Repealed)

is an Australian lawyer of at least 7 years’ standing.

(Repealed)

Each Judge shall have the same rank, title, status and precedence and, except as provided by subsection (2A), the same remuneration and other rights as a Judge of the Supreme Court (other than the Chief Justice and the President of the Court of Appeal).

The Chief Judge shall have the same remuneration as the President of the Court of Appeal.

(Repealed)

The Governor may, by commission under the public seal of the State, appoint a Judge (but not an acting Judge) to be Acting Chief Judge during such period as the Chief Judge may be absent from duty.

While the Chief Judge is absent from Australia and an Acting Chief Judge has not been appointed under subsection (1), the senior Judge present in Australia is taken to be the Acting Chief Judge.

For the purposes only of subsection (1A)—

the Judges shall have seniority between themselves according to the dates of their commissions as Judges under this Act, a Judge whose commission is dated earlier than that of another Judge being senior to that other Judge, and

if the commissions of two or more Judges bear the same date, those Judges shall have seniority between themselves according to the seniority assigned to them by their commission or, failing any such assignment, according to the order of their being sworn.

While holding office, the Acting Chief Judge shall have and may exercise the functions of the Chief Judge.

The Governor may, by commission under the public seal of the State, appoint any qualified person to act as a Judge for a time not exceeding 5 years to be specified in the commission.

In subsection (1), qualified person means a person qualified for appointment as a Judge.

The person so appointed shall, for the time and subject to the conditions or limitations specified in the person’s commission, have and may exercise the functions of a Judge and shall, for the purposes of this or any other Act, be deemed to be a Judge.

The person so appointed may, despite the expiration of the period of the person’s appointment, complete or otherwise continue to deal with any matters relating to proceedings that have been heard, or partly heard, by the person before the expiration of that period.

While a person completes or otherwise continues under subsection (3A) to deal with any matters relating to proceedings that have been heard or partly heard by the person before the expiration of the period of the person’s appointment, the person has all the entitlements and functions of a Judge and, for the purpose of those proceedings, is taken to continue to be a Judge.

A retired Judge of the Court or of another court in New South Wales (including a retired judicial member of the Industrial Commission or the Industrial Relations Commission) may be so appointed even though the retired Judge has reached the mandatory judicial retirement age (or will have reached that age before the appointment expires), but may not be so appointed for any period that extends beyond the day on which he or she reaches the age of 78 years.

The conditions or limitations specified in a commission under this section may exclude the whole or any part of the period of appointment from being regarded as prior judicial service (within the meaning of section 8 of the Judges’ Pensions Act 1953) by the person.

This section applies to each of the Judges of the Supreme Court (an eligible judicial officer) other than the following—

the Chief Justice,

the President of the Court of Appeal,

the other Judges of Appeal,

the Chief Judge at Common Law,

the Chief Judge in Equity,

an acting Judge.

An eligible judicial officer may act as a Judge for a particular period or in relation to particular proceedings in the Court if—

the Chief Judge certifies that it is expedient that the eligible judicial officer should act as a Judge of the Court for the period or in relation to the proceedings, and

the eligible judicial officer consents to acting as a Judge for the period or in relation to the proceedings, and

the Chief Justice consents to the eligible judicial officer acting as a Judge for the period or in relation to the proceedings.

The following provisions apply to and in respect of an eligible judicial officer who acts as a Judge of the Court pursuant to the provisions of this section—

the eligible judicial officer has, while acting as a Judge, all the powers, authorities, privileges and immunities of a Judge of the Land and Environment Court,

the eligible judicial officer may attend the sittings of the Court for the purpose of giving judgment in, or otherwise completing, any proceedings which have been heard by the Court while the eligible judicial officer was acting as a Judge in the proceedings even if the eligible judicial officer is no longer acting as a Judge,

the eligible judicial officer is not, while receiving remuneration as a Judge of the Supreme Court, entitled to remuneration for acting as a Judge of the Land and Environment Court,

any service of the eligible judicial officer while acting as a Judge is taken for all purposes (including for the purposes of the Supreme Court Act 1970 and the Judges’ Pensions Act 1953) to be service as a Judge of the Supreme Court,

nothing in this Act or any other law requires the eligible judicial officer to devote the whole of his or her time to the duties of acting as a Judge of the Land and Environment Court.