Australia: Is the time right to appeal a planning decision in NSW? The difficulties calculating deemed refusal periods

Last Updated: 10 November 2017
Article by Peter Holt
Most Read Contributor in Australia, August 2018

Applicants can appeal against a decision of the consent authority (typically the council). Any appeal to the Land and Environment Court (Court) against the failure of the consent authority to determine the application must be brought after the expiry of the period from when the application is taken to be refused, referred to as the 'deemed refusal period' and before the end of the 6 month period set out in section 97 of the Environmental Planning and Assessment Act 1979 (EP&A Act) passes.

The deemed refusal periods vary from between 40 to 90 days depending on the type of application. The Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) provides for how days are to be counted. The EP&A Regulation also provides the consent authority and certain government agencies with the ability to stop-the-clock as part of a request for further information.

Prior to 2011 the appeal period was 12 months. That was reduced to 6 months on the basis that the shorter period would "strike a better balance", bringing New South Wales into line with appeals in other states while still allowing for reconsideration of the proposal, to speed up the process for appeals, to reduce the uncertainty for applicants and neighbours, whilst also providing applicants with sufficient time to negotiate with council before deciding on whether they would commence an appeal.

The complexities associated with the existing stop-the-clock procedures set out in the EP&A Regulation now mean that many applicants are unaware of when the deemed refusal period starts and, potentially more importantly, when the 6 month period within which an appeal can be brought has ended.

This has resulted in a number of Court cases where applicants and consent authorities have fought over what should be the relatively simple matter of whether the applicant can bring an appeal. This has been either on the basis that the appeal was commenced early (before the deemed refusal) or was commenced out of time.

Cases like the ones below highlight the difficulties posed by the parties in determining whether the time is right to bring an appeal on the basis of a deemed refusal:

  • Mitchell Group Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 113 (whether the request to stop the clock arrived out of time)
  • Ipoh Pty Limited v Sydney City Council (2005) 142 LGERA 373 (the clock restarts if an application is formally amended and that amendment is accepted by the consent authority)
  • Corbett Constructions P/L v Wollondilly Shire Council [2017] NSWLEC 135 (does not providing the required information in time mean that the clock restarts after the deadline?)
  • Lateral Estate Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 6 (proposed amendments that are not accepted by the consent authority do not restart the clock)
  • Australian Consulting Architects Pty Ltd v Liverpool City Council [2017] NSWLEC 129 (a request for additional information by an agency who is not a concurrence authority or an approval body does not stop the clock).

Litigating whether an applicant can even bring an appeal is of very little utility.

The New South Wales Government has recently introduced the Environmental Planning and Assessment Amendment Bill 2017 (Bill) into Parliament. That Bill proposes to carry over the 6 month period in which an applicant can appeal to the Land and Environment Court on the basis of an actual or the deemed refusal of a development application.

One of the things the Government could to make things simpler for applicants is to amend the Bill to extend the period for which an appeal can be brought back to 12 months.

In addition to the Bill, the Government has also sought proposals as part of the review of the EP&A Regulation. The Government has said that it is looking for ideas that would increase procedural efficiency, reduce complexity and establish a simpler more transparent planning system.

If applicants have a longer period in which to appeal and any appeal can commence after a reasonable period of time, any change to the requirement to commence an appeal within 12 months of the deemed refusal date would enable the EP&A Regulation to be simplified by removing many of the complexities associated with the existing stop-the-clock procedures.

For example, the deemed refusal could be 60 days for everything but State significant development (90 days) - with no ability to stop the clock. A further 12 months from that date could be allowed to institute an appeal.

That change would simplify the EP&A Regulation considerably and make things easier for applicants and consent authorities.

We know from the information published by the Department of Planning and Environment in 2014-15 that almost all development (95%) is determined within 46 days from when the application is lodged and that most applicants try and work through issues with the council to resolve matters before contemplating an appeal. We also know that only a very small proportion of applicants appeal to the Court (less than 1%).

If a consent authority is not getting the information it needs to determine the application it could always refuse the application (noting again that only 3% of applications are refused).

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Peter Holt
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