When a development application or application to modify a development consent (‘MOD’) is refused by a Council or some other consent authority in NSW, the applicant may have options under the Environmental Planning and Assessment Act 1979 (NSW) (‘EP&A Act’) that include:
Applying for an internal review of the decision by the consent authority (not available to all categories of development); and
Commencing a Class 1 appeal of the decision in the Land and Environment Court.
Why Seek a Review or Commence an Appeal?
Seeking a review or appealing the refusal of a development application or Mod is an important part of the planning process, as it may lead to the refusal being overturned and allow the proposed development or modification to proceed.
There are many reasons why applicants decide to seek a review or appeal the refusal of a development application or Mod. These often include:
The consent authority has made a mistake or error in their decision-making process such as a misinterpretation or misapplication of planning controls, policies, regulations, or legislation.
The merits of the proposed development or Mod warrant approval.
There is an inconsistency with the consent authority’s decision as similar developments have been approved.
There has been significant investment in the development application.
The applicant wishes to explore changes to the proposed development or Mod with the consent authority which could lead to an approval.
Before embarking on either an internal review or appeal, a good starting point for deciding how best to proceed is to review the Notice of Determination and any reasons given by the consent authority for their decision. The reasons given may provide insight into some error or mistake in the decision, or on changes to the proposed development or Mod that may lead to an approval. The full range of real issues or difficulties may be hard to discern from the reasons, and so expert assistance may be required to fully understand the refusal and how best to proceed.
Time Limitations
Both the internal review and appeal avenues mentioned above are subject to strict time limits set out in the EP&A Act and therefore it is important to act quickly after the refusal of a development application or MOD.
The time limits that will ultimately apply will depend on a range of factors, however in most cases an application for internal review must be made within 28 days of the determination, and an appeal must be commenced within 6 months of the determination. Given the time limits are strict and can be difficult to calculate, advice should be taken on your specific circumstances to be sure of the time limits that apply to the refusal of your development application or MOD.
Conclusion
Regardless of the reasons, the refusal of a development application or MOD can be frustrating, especially with the time and expense involved in making the application.
The refusal may not mean the end of the road for your proposed developments as there are options for seeking an internal review or commencing a Class 1 Appeal of the refusal in the Land and Environment Court.
It is important to act quickly though to ensure you do not miss any applicable time limits. It is also important for you to understand the reasons for refusal and the issues involved so that these can be disputed or addressed in the internal review or appeal process.
If your development application or MOD has been refused and you would like to explore making an application for internal appeal or commencing a Class 1 Appeal of the refusal in the Land and Environment Court, then reach out for a discussion or to request some advice specific to your circumstances.
Note: In addition to appeals on refusals of development applications and MODs, appeal processes exist under the EP&A Act for refusals and deemed refusals of construction certificates, occupation certificates, subdivision works certificates or subdivision certificates.
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