Participation and responsiveness in merits review of polycentric decisions: A comparison of development assessment appeals

Abstract

The question of whether tribunals operate in an inquisitorial or adversarial manner can be regarded as a starting point for evaluating their processes. It is a question that is also raised in regards to the Land and Environment Court of New South Wales (LEC). This article argues that the merits review jurisdiction of the LEC generally operates according to an adversarial process. This becomes clear when participation and responsiveness in the LEC is compared with the Victorian Civil and Administrative Tribunal's Planning and Environment List, which tends to operate according to inquisitorial processes. Particular risks are identified with both adversarial and inquisitorial processes in the context of merits review of development assessment decisions. It is argued that the problems raised by adversarial processes are more fundamental than those raised by inquisitorial processes.