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

Introduction

Receiving an unfavourable decision on a development application in New South Wales can be a significant setback for any developer. However, understanding the range of available options and the steps to take after such a decision is essential for moving your development forward.

This guide provides clear and practical information to help developers respond effectively to a negative development application outcome, outlining the key processes and remedies available under NSW planning law.

Interactive Tool: Check Your DA Appeal Deadlines

Understanding Potential Development Application Outcomes

Development Consent Granted Unconditionally or with Conditions?

When a council assesses a development application, a favourable outcome results in development consent. This approval can be granted in one of two ways:

• The first is an unconditional consent, which is a full approval of the development application. This allows the project to proceed without any additional requirements from the council.
• More commonly, a council will grant a conditional consent. This means the development is largely approved, but with specific conditions that must be satisfied for the consent to be valid.

These conditions must be met before the development can fully proceed, ensuring the project aligns with local planning regulations.

Development Application Refusals: Explicit or Deemed?

An unfavourable outcome for a development application is known as a refusal. This can occur in two ways:

• An explicit refusal occurs when the consent authority provides a clear and direct rejection of the proposal. In this situation, the notice of determination will state the specific reasons why the development did not meet the necessary criteria.
• Alternatively, a refusal can happen automatically through a deemed refusal. This occurs if the council or consent authority fails to make a decision within the statutory timeframes.

According to the Environmental Planning and Assessment Act 1979 (NSW), an application is deemed to have been refused after a certain period has passed, which can be:

• 40 days for an ordinary development
• 60-62 days for a designated or integrated development
• 90 days for a State significant development

Your Initial Steps After a Development Application Refusal

Reviewing the Council’s Notice of Determination

Before deciding whether to pursue an internal review or a court appeal, your first step should be to carefully review the Notice of Determination from the consent authority. This document outlines the specific reasons for the refusal of your development application, and analysing these reasons is crucial for understanding the council’s decision-making process.

The determination may reveal errors or mistakes made by the consent authority. For example, you might identify:

• A misinterpretation or incorrect application of planning controls, policies, or legislation.
• An inconsistent decision when compared to similar developments that have been approved.
• Areas where minor changes to your proposed development could lead to an approval.

Understanding the precise grounds for refusal is essential for determining the most effective way to proceed with your development plans.

Seeking Expert Advice on Your Development Proposal

After examining the council’s feedback and reasons for denial, it is wise to seek advice from relevant experts. Professionals such as architects and planning consultants can help you fully understand the refusal and how best to move forward.

They can assess the council’s determination and advise on potential modifications to your development application, including:

• Making necessary additions or deletions to the proposal to ensure it complies with all relevant regulations.
• Resolving the issues highlighted by the council, thereby strengthening your position before considering an internal review or re-lodging the application.

Engaging professionals at this stage can help you address the council’s concerns and improve your chances of a successful outcome.

Your Options for Challenging a Development Decision

Requesting an Internal Review of the Determination

If your development application has been refused, one of the first steps you can take is to request an internal review of the decision. This process involves asking the council to reconsider the application, and it will be re-assessed by a different council officer who was not involved in the original determination.

Applying for an internal review is often a more cost-effective and faster method for challenging a decision compared to lodging an appeal with the court. Under the Environmental Planning and Assessment Act 1979 (NSW), this option allows for a fresh evaluation of your development proposal’s merits.

It is important to act quickly, as strict time limits apply to internal review requests.

Modifying & Re-lodging Your Development Application

Another practical option is to modify your development application to address the specific reasons for the council’s refusal. After carefully reviewing the notice of determination, you can make the necessary adjustments to your plans to ensure the proposal complies with planning controls and policies.

This may involve:

• Rectifying errors in your application
• Amending descriptions to provide greater clarity
• Altering the design of the development to better align with council requirements

It is important to note that if the modifications are too substantial and fundamentally change the nature of the original proposal, you may be required to submit an entirely new development application.

Amending and re-lodging your application before commencing a court appeal is typically less expensive and provides greater flexibility.

Case Study How PBL Law Group Secured Development Consent After Refusal

Background The Initial Development Application Refusal

In the case of Matthew Arthur Harrison trading as All Town Skips v Central Coast Council [2022] NSWLEC 1244, the applicant’s development proposal was initially rejected. The Hunter and Central Coast Regional Planning Panel refused the development application for the construction of a waste or resource transfer station at a site in Tuggerah, NSW, a process that often requires navigating complex building and construction law.

This initial refusal prompted the applicant to seek legal recourse to challenge the decision.

The Winning Strategy Conciliation & a Successful Appeal

The matter was successfully resolved through a strategic approach that prioritised negotiation over a prolonged hearing.

The proceedings were resolved in a conciliation conference held under Section 34 of the Land and Environment Court Act 1979 (NSW). This process allowed both parties to reach a mutual agreement, which ultimately led to the appeal being upheld by the Court.

As a result, development consent was granted for the client’s revised proposal, demonstrating the effectiveness of conciliation in achieving a positive outcome.

Key Takeaways from a Successful Development Appeal

The successful appeal hinged on satisfying the Court that all relevant planning and environmental considerations had been properly addressed.

Expert evidence was crucial in demonstrating that the proposed development met all necessary requirements.

Key issues that were successfully addressed included:

• Vehicular Access: Traffic experts confirmed that proposed road widening and vegetation removal would ensure suitable and safe vehicular access to the site.
• Environmental Impact: An ecologist’s report concluded that the development would not have a significant impact on any nearby endangered ecological communities or vulnerable species.
• Bushfire Safety: A comprehensive bushfire report demonstrated that the development would comply with the standards outlined in Planning for Bushfire Protection, as required by Section 4.14 of the Environmental Planning and Assessment Act 1979 (NSW).
• Site Contamination: A contamination assessment confirmed the land was suitable for its intended use as a waste or resource transfer station.
• Essential Services: The Court was satisfied that all essential services, such as water, electricity and sewage management, were available or would be made available for the development.

Appealing Your Development Decision to the Land & Environment Court

Understanding the Merit Review Process for Your Development

When you appeal a development decision to the Land and Environment Court, the case is typically handled as a Class 1 merit appeal. This means the Court is not limited to reviewing the original decision-making process but can consider the development proposal afresh.

The Court will examine all the evidence, including any new material you present, to determine whether the council’s decision should be upheld or overturned.

In a merit review, the proceedings are often informal, and the strict rules of evidence do not apply. A Commissioner usually hears the appeal and has the authority to make any decision the original consent authority could have made.

After considering all the facts, the Court can:

• Approve your development application, potentially with its own set of conditions
• Uphold the council’s refusal

Preparing & Lodging Your Development Appeal

To ensure a smooth process when filing an appeal with the Land and Environment Court, it is essential to have all your documentation and procedural requirements in order.

Before lodging your appeal, you should confirm that several key steps have been completed. A checklist of these prerequisites includes:

• Payment of Fees: Ensure the development application fee has been paid in full to the council.
• Documentation: You must have copies of all relevant documents that were submitted to the council, and you should confirm the council has also been provided with everything required.
• Notice of Determination: A copy of the council’s notice of determination, particularly if the application was refused, is essential.
• Procedural Compliance: You must have adhered to all procedural requirements that were necessary before development consent could be granted.
• Court Requirements: The plans attached to your development application must comply with the Court’s specific guidelines, such as the Class 1 Practice Note.

Navigating Strict Time Limits for Your Appeal

It is crucial to act quickly if you decide to challenge a development refusal in court, as strict time limits apply.

An appeal to the Land and Environment Court must generally be commenced within six months from the date you received the notice of determination or from the date of a deemed refusal.

This six-month deadline is a strict statutory requirement under Section 8.10 of the Environmental Planning and Assessment Act 1979 (NSW). Failing to lodge your appeal within this timeframe can result in losing your right to challenge the decision, making it vital to seek legal advice as soon as possible to ensure you meet all deadlines.

Conclusion

Receiving a refusal for a development application in NSW is not the end of the road, as developers have several strategic pathways to pursue a favourable outcome. By understanding the options available, from requesting an internal council review and modifying the application to lodging a formal appeal with the Land and Environment Court, you can effectively challenge an unfavourable decision.

Navigating the complexities of planning law requires strategic foresight and a thorough understanding of the process. If you need expert legal guidance to move your development forward, contact PBL Law Group’s experienced planning and environment lawyers for trusted advice and assistance with your property development journey.

Frequently Asked Questions