Applications made to local consent authorities follow a statutory process for determination.

The Environmental Planning and Assessment Act 1979 (NSW) provides that applications may either be approved, may be deemed to have been refused, or actually be refused.

When is an application deemed to have been refused?

Where a local consent authority has failed to respond within 42 days of having received a validly lodged development application (or 62 days for designated developments or integrated developments) then Regulation 113 of the Environmental Planning and Assessment Regulation 2000 (NSW) provides that the application is deemed to have refused.

Actual Refusal

Where the application is determined and not endorsed, the application is refused.

Appeals

In circumstances where an application is deemed to have been refused, or is actually assessed and refused, an aggrieved party may:

  1. Consider appealing through the council’s internal review procedures.
  2. Appeal the decision within 6 months of notice to the Land and Environment Court of NSW.

Prior to lodging an appeal, it would be prudent to ensure that all relevant matters have been dealt with including:

  1. The full development application fee has been paid to the local council;
  2. All relevant documents have been provided to the local council prior to assessment;
  3. Copies of any documents or material that have been lodged with the local council at any time are in your possession.
  4. All procedural requirements that were required prior to development consent being granted have materialised, including but not limited to, public notification.
  5. The plans attached to the development application must satisfy Schedule A to the Class 1 Practice Note of the Land and Environment Court.
  6. If there was an actual refusal, obtain a copy of the local council’s Notice of Determination that refused the development application.