Australia: Appealing to the NSW Land & Enironment Court over a Development Application (DA)

Last Updated: 13 November 2017
Article by Mario Prodromou

By the time someone reaches the point where they want to appeal to the Land & Environment Court ("L&E Court"), they have usually reached an impasse in the progress of their development application ("DA"). The setback could be: a refusal; an unviable development consent, possibly because of adverse conditions; or, continued requests for more detailed reports or changes that may not seem necessary.

Best prospects of success in appealing to the L&E Court over a DA, require that applicants put forward their best DA possible. A useful paper to read before reaching the point where the L&E Court may be the best option is " Council hasn't approved my DA – What next?"

Before appealing to the L&E Court, applicants need to know what is involved:

  • How much will appealing to the L&E Court cost? Appeals to the L&E Court to obtain an approval to a DA or in relation to conditions of consent usually proceed on the basis that each party pays their own costs irrespective of the outcome – but there are exceptions!
  • How long will it take? According to the L&E Court website, of 832 Class 1 appeals disposed of in 2016 (appeals relating to DAs are the great majority of cases within Class 1) 94% were finalised within 12 months, and 63% were finalised within 6 months.
  • Are there any alternatives? and
  • What are my prospects?

Data from the 2014-2015 Local Development Performance Monitoring Reports from NSW Planning & Infrastructure indicates that:

  • 47% of Class 1 appeals involving a DA were approved by the L&E Court. That 47% could be split further, to distinguish between successful Class 1 appeals without amended plans (22%) and successful appeals with amended plans (25%);
  • 33% of Class 1 appeals were withdrawn or dismissed and therefore unsuccessful; and,
  • 20% of the Class 1 appeals involved DAs which were resolved through consent orders, that is, through agreement. This can mean a successful outcome, possibly outside the L&E Court, or possibly an unsuccessful outcome, or changed circumstances for the applicant.

[For more statistics and other Local Development Performance Monitoring Reports including how your local council compares, go to: http://www.datareporting.planning.nsw.gov.au]

The statistics for a successful outcome look positive for applicants as a whole, but, applicants would normally seek advice before commencing an appeal so it is likely that DAs with better prospects are the subject of appeals.

Although each DA, and each site, is different, the starting points involved in assessing the prospects of a Class 1 appeal include:

  • the level of compliance with planning instruments and policies and the impact of any non-compliance;
  • the surrounding built environment and the impact of the proposed DA on that environment;
  • whether sufficient information has been provided; and,
  • the substance of any objections received.

Back to the statistics though. Of the Class 1 appeals that are successful, the majority involved amended plans lodged during the Class 1 appeal process. One possible reason, is that sometimes commencing Class 1 proceedings is the last chance for the parties to really focus on the DA and before, potentially, leaving the final decision in the hands of the L&E Court.

There are strict time limits on when a Class 1 appeal can be lodged, so, you need to keep in mind when you can lodge your appeal by.

When can I lodge?

Applicants can lodge a Class 1 appeal within 6 months after the date that:

For DAs

the applicant received notice of the determination of their DA or their DA is deemed to be determined (where a council has not made a decision either way);

DAs are "deemed" to be determined

  • 40 days from the day the DA is lodged for a "normal" DA;
  • 60 days for integrated development, designated development or where concurrence is required;
  • 90 days for State significant development.

Or, for modification/section 96 applications to amend development consents

the applicant received notice of the determination of their modification/section 96 application or their modification/section 96 application is "deemed" to be determined.

  • Modification/section 96 applications are deemed to be determined:
  • 40 days from the day the modification/section 96 application is lodged.

[For appeals concerning DAs ss 82(1), 97(1) of the Environmental Planning & Assessment Act 1979 ("EP&A Act") & cl 113 of the Environmental Planning & Assessment Regulation 2000 ("EP&A Regulation") & for appeals concerning modification/section 96 applications: ss 96(6), s97AA of the EP&A Act & cl 122A of the EP&A Regulation]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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