Has your NSW Development Application or Application to Modify a Development Consent ('Modification') stalled with Council or some other consent authority? This can be frustrating, especially if you have time pressures and costs, or simply want to progress towards doing your development.
A deemed refusal appeal is a way for applicants to progress a Development Application or Modification that has not been determined by the consent authority within the expected timeframe.
What is a Deemed Refusal?
The Environmental Planning and Assessment Act 1979 (NSW) ('EP&A Act') sets expected timeframes for consent authorities to determine a Development Application or Modification. These timeframes can be between 40 and 90 days depending on the specific type, size and nature of development. The timeframes can also be subject to extension when 'stop the clock' requests for information are made. Amendments to the Development Application or Mod can also have an effect on when deemed refusal rights arise.
If the consent authority does not make a determination within the required timeframe, the application is 'deemed' to be refused under the EP&A Act. This means the applicant can appeal to the Land and Environment Court as if the application had been actually been refused. This is called a Deemed Refusal Appeal.
Why pursue a Deemed Refusal Appeal?
There are several key reasons a developer may choose to commence a Class 1 Deemed Refusal Appeal in the NSW Land and Environment Court for a Development Application or Modification:
Shorten Assessment Timeframes - By appealing to the Land and Environment Court, developers can shortcut unended and lengthy assessment procedures and bring the application directly before the Court. This can help fast track the determination of the application compared to waiting potentially indefinitely for a consent authority to determine the application.
Break an Assessment Deadlock - Where a consent authority is delaying determination or requesting extensive additional information, a deemed refusal appeal can help break the deadlock. It brings the assessment to a conclusion one way or the other.
Have an Objective Decision by the Court - Rather than an uncertain council merit assessment, the Court takes an objective view of the merits of the proposal against relevant planning controls and laws. This can provide greater certainty and fairness through an independent umpire.
Conclusion
Deemed Refusal Appeals can be a useful tool for applicants to progress Development Applications and Modifications that have stalled at the assessment stage. By appealing to the Land and Environment Court, applicants can shorten determination timeframes and/or have their proposal objectively assessed on its merits by the Court.
Calculating when deemed refusal rights arise can be complex. Appeal rights also only remain active for a certain time once those rights arise and then they lapse. It is therefore important that you take advice as soon as possible if you are considering a Deemed Refusal Appeal to progress your Development Application or Mod towards determination.
If you need assistance progressing your Development Application or Modification towards approval, including by way of a Deemed Refusal Appeal, then reach out for a discussion or to request some advice specific to your circumstances.
Remember - the contents of this post are not legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have. If you need assistance, please contact us.
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