Denial of Development Applications: What to do if you get an unfavourable development application decision in NSW

4 min read

Undertaking a property development project in New South Wales requires understanding a set of rules, regulations, and potential outcomes. Central to this process is the development application, an essential step that begins a sequence of events leading to a final decision. Development application results can vary widely, from full approval to outright rejection. It’s vital for developers to understand these potential outcomes. But what happens if the development application returns with challenging terms or conditions? While the next steps may seem uncertain, there are definite options available. In this article, we will discuss the different possible outcomes of a development application and outline the options for developers when faced with a council’s negative response. Whether you’re experienced in property development or just starting out, this article aims to provide clarity on the process.

Table of Contents

Understanding the Potential Verdicts of a Development Application in New South Wales

In real estate development in New South Wales, submitting development applications is the initial step in a process outlined by the Environmental Planning and Assessment Regulation 2021. Here is a concise overview of the potential outcomes your development applications may face:

Acceptance of Development Applications

When the outcome is positive for the developer, the development application receives “development consent,” which can occur in two forms:

  1. Unconditional Consent: The development application is fully approved, enabling the developer to move forward without further requirements.
  2. Conditional Consent: Most of the development application is approved, but specific conditions are imposed. These must be met before the development can fully proceed.

Refusal of Development Applications

Not all development applications are approved, resulting in a “refusal”. This unfavourable outcome can arise from two specific situations:

  1. Explicit Refusal: In this case, the reasons for the rejection are clearly stated, providing an understanding of why the development did not meet the necessary criteria.
  2. Deemed Refusal: If the consenting authority does not make a decision within a 40 to 60 day period, it is considered a deemed refusal.

Consider this similar to a yellow traffic light. The development isn’t fully approved by the city council; it’s given a conditional go-ahead. Initial approval is granted, but with certain requirements. The development can only commence once these conditions are fulfilled.

Understanding the nuances of property development requires a thorough knowledge of these possible outcomes. This insight provides developers with the ability to anticipate and prepare for various scenarios.

If the council denies your development application or sets conditions you deem too stringent, it can be disappointing. However, it’s important to remember that there are still several avenues to explore:

Request a Review of Determination

Consider using the Review of Determination mechanism provided by your council. This allows you to request the council to reconsider their decision through an internal review. It’s important to be aware of the time frame: you have six months from the date the council declined your application. This method is usually more cost-effective and faster than other alternatives.

Commence an Appeal to the Land and Environment Court

The Land and Environment Court is an essential option for those unsatisfied with council decisions. The court thoroughly reviews development applications, considering the views of all involved parties, including the community. Although this route might be time-consuming and costly, it offers a significant legal avenue. If you receive an unfavourable decision on your development application, you have the option to file an appeal against the council with the Land and Environment Court.

To smoothen this process, ensure:

  • All fees, especially the development application fee, have been cleared with the council.
  • Both the council and you have all the requisite documents.
  • Procedural requirements have been adhered to, especially those that were prerequisites for the development application approval.
  • The attached plans are in consonance with the Class 1 Practice Note of the Land and Environment Court.
  • A copy of the council’s notice of determination, especially if it was a refusal, is with you.

Engage in Conciliation with the Council

Conciliation, outlined in Section 34 of the Land and Environment Court Act 1979, offers a cooperative approach to resolving disputes. This method promotes open communication and aims to reach a compromise acceptable to all parties involved. A notable advantage of conciliation is its confidentiality; discussions aren’t used as evidence in later hearings. If your development applications are denied, it’s beneficial to consider conciliation with the consent authority to seek mutually agreeable terms. Conciliation can be initiated either before submitting an appeal or while an appeal against a refusal is ongoing.

For example, in our recent case, All Town Skips in Matthew Arthur Harrison trading as All Town Skips v Central Coast Council [2022] NSWLEC 1244, what began as a standard hearing transitioned into a successful conciliation with the Hunter and Central Coast Regional Planning Panel. This resulted in approval for our client’s revised development plan. This case highlights the potential of conciliation in resolving disagreements.

Modify and Relodge Your Development Application

Should you be willing to adjust your plans, you might look into a Modification of Consent. This involves making adjustments to your initial development proposal. However, it’s important that these changes don’t deviate too far from the original application. If the modifications substantially change the core nature of the initial development application, you’ll need to start the process anew.

In summary, while a rejection or strict conditions from the council can seem discouraging, it doesn’t mean you’re out of options. Consider the mentioned approaches to work towards a positive resolution.

Conclusion

Navigating the complexities of property development in New South Wales requires a thorough understanding of the development application process. From the initial application to the various potential outcomes and subsequent steps, each stage holds significance for developers. While the journey may present challenges, especially when the city council’s decision isn’t favourable, the available options emphasise adaptability and perseverance. By being informed, utilising available resources, and seeking collaborative solutions, challenges can be transformed into confident progress. A setback in the development application process, whether due to rejection or stringent conditions, isn’t an end but often a catalyst for innovation, constructive dialogue, and eventual success.

Property and real estate development isn’t just about bricks and plans; it’s also about strategic foresight and approach. With the right knowledge and strategy, every obstacle becomes a stepping stone. Should you need expert legal guidance through this intricate process, our law firm is ready to assist. We aim not only to inform but also to equip you for informed decisions. Reach out to us for specialised legal services, and let us guide your journey in property development.

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Picture of Authored By<br>Raea Khan

Authored By
Raea Khan

Director Lawyer, PBL Law Group

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I have experienced an excellent service from PBL (especially from Anita) during the sale of my recent property on Central Coast, and during the purchase of our current property in Sydney. Throughout many challengers, especially with the sale, Anita presented her very professional and knowledgeable conveyancer, positively solving all obstacles. "Above and Beyond" Award going to Anita!!! :-)
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Trace M
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Tricia Wheatstone
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