Australia: Court Decision In Hainbury v Campbelltown Council Sends A Welcome Message To Councils And A Warning To Developers, In Relation To S.82A Reviews Of Council Decisions.

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 appeal.

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 decision.

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 appeal.

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