Applicants and developers have often resorted to section 82A
of the Environmental Planning and Assessment Act to
seek an internal review of a council's decision
relating to a DA. This often involves a new assessment by
Councillors or staff who were not involved in the initial
decision, and allows the introduction of amended plans to
resolve design problems. But a recent Land and Environment
Court decision, Hainbury Pty Limited v Campbelltown City
Council, held that a council has no obligation to ever
determine an application for review under s.82A. This means
such requests can simply be ignored by councils.
It also means that an applicant will generally have only 12
months from the date of determination of their DA to lodge an
appeal, whether or not a s.82A application has been lodged (or
12 months and 42 days in the case of a 'deemed
refusal'). In this case, the developer assumed it would
have 12 months from the time that the Council determined its
s.82A application. Instead, Council chose to ignore that s.82A
application and while the applicant waited patiently for a
decision, its 12 month appeal period expired. The decision
therefore serves as a reminder to applicants that an appeal
must always be lodged before the expiration of this time
period, otherwise the court will not have jurisdiction to hear
The Hainbury decision primarily affects applicants who wish
to appeal or to seek a review of an adverse determination by a
council to a development application (and this includes a
review of unacceptable conditions of approval). There are two
methods by which an applicant may seek review of a council
Firstly, an applicant may appeal to the Land and Environment
Court against a determination. In appealing to the court, an
applicant must lodge an appeal within 12 months of receipt of
the initial notice of determination.
Secondly, if the consent authority is a council, an
applicant may request a review by the council itself pursuant
to section 82A of the Act (other than in cases of designated
and integrated development). If the council subsequently
confirms an adverse determination, the applicant has a further
12 months to lodge an appeal to the court. However, as
confirmed by the Hainbury decision, in situations where the
council fails to respond to the request for review, the
applicant only has its ordinary 12 months (from the initial
receipt of a determination) to lodge any appeal.
The decision of Justice Lloyd in Hainbury has confirmed that
even if an applicant has applied for review by a council, a
council is entitled to do nothing, and is under no obligation
to ever consider or determine the review application. Justice
Lloyd relied upon the words in the Act which state that an
applicant may "request" a council to review its
decision, and on the absence of any words requiring a Council
to agree to such a request (s.82A only states that a council
"may" review its decision).
This case therefore serves as a reminder to applicants to
note the last date for an appeal from the date of the notice of
the determination of the initial application. Keeping track of
the last date to lodge an appeal will ensure that in the event
that no response is received by council to a section 82A
application for review, applicants still have recourse to an
appeal in the courts.
For councils, the judgement may be welcome news, as it
relieves councils from any obligation to review a decision when
requested to do so by an applicant. Moreover, councils should
be aware that by reviewing their decisions (even where a
further refusal of a DA is issued), they will be providing an
applicant with a further 12 months in which to commence any
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In September 2009 the NSW Government announced that by way of an amendment to the Trees (Disputes Between Neighbours) Act 2006 the Land and Environment Court would be given the power to resolve disputes between neighbours over high, dense hedges that severely affected views and sunlight.
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