The NSW Land and Environment Court has recently determined that Sell & Parker Pty Limited have no current right of appeal in relation to a development application that has been with the Department of Planning since March 2014. The case is a reminder to applicants to keep their eye on the clock. It is also a prime example of the distortion created when a time limit is imposed on the right to appeal a deemed refusal.

Sell & Parker have applied to expand their waste  metal recovery processing and recycling facility in Kings Park, Sydney. As the application is for a class of development that has been declared to be "State significant development", the Minister for Planning is the consent authority.

Sell & Parker's development application and the requisite environmental impact statement (EIS) was lodged with the Department of Planning in March 2014. In response to various submissions, a revised EIS was lodged in July 2014. The development application and the revised EIS were placed on pubic exhibition from late August to early October 2014. Sell & Parker provided its response to submissions in January 2015.

The right to appeal a decision in relation to a development application arises in two circumstances, but expires six months after it arises in each circumstance. The right to appeal first arises when an application is "deemed" to be refused. In Sell & Parker's case, this right arose 90 days after its development application was lodged - in June 2014 - and then expired in December 2014. The right to appeal secondly arises when the development application is actually determined - which, in Sell & Parker's case, has not occurred yet.

As a result, Sell & Parker attempted to lodge a second development application seeking consent for the same development and relying on the same July 2014 revised EIS and January 2015 response to submissions, in order to bring about a fresh trigger to appeal a deemed refusal.

The Department of Planning then wrote to Sell & Parker and asserted that the Environmental Planning and Assessment Act 1979 (EP&A Act) does not permit an applicant to make multiple applications for the same development when the first application is before the consent authority and yet to be determined. The Department's letter stated that the Department considered that Sell and Parker's purported second application was not a development application for the purposes of the EP&A Act.

Sell & Parker then lodged an appeal to the Land and Environment Court on the basis that the Department's letter was a refusal of its development application, which triggered a right of appeal to that Court.

The Land and Environment Court disagreed. It found that the Department's letter did not give notice of any determination of the application by the Minister, and therefore dismissed Sell & Parker's case. Sell & Parker were also ordered to pay the Minister's costs.

The case is a reminder of the need for applicants to keep their eye on the clock if they think that they may need to seek the intervention of the Land and Environment Court to speed up the determination of a development application. Sell & Parker's predicament is also a prime example of the distortion created when a time limit is imposed on the right to appeal a deemed refusal.