Class 1 appeals dominate the Land and Environment Court’s caseload.[1] Many of these are commenced against the ‘deemed refusal’ of a development application. This occurs when the consent authority fails to determine the application within the assessment period prescribed by the Environmental Planning and Assessment Act 1979 (the Act) and the Environmental Planning and Assessment Regulation 2000 (the Regulation). It is therefore important that applicants and consent authorities understand the correct approach to calculating when a ‘deemed refusal’ will occur, and also know how to extend the development assessment period where necessary. This essential guide will look at when the development assessment clock stops and what events will restart it.

When does the assessment period start and end?

Under the Regulation consent authorities have 40, 60 or 90 days to determine a development application, depending on what type of application it is. This is known as the assessment period. ‘Days’ in this context means all days – not just business days. If the consent authority does not determine the application within the assessment period then the application is deemed to have been refused.[2] The applicant then has the right to seek review of that decision in the NSW Land and Environment Court within six months of that date.[3]

When calculating the length of the assessment period, the day on which the development application is lodged, as well as the following day, are not included.[4] This is to allow the consent authority time to register and check the application for compliance with the requirements of Schedule 1 of the Regulation before the merits assessment is commenced.

If the application does not identify all relevant integrated development approvals or concurrence requirements then the consent authority might take longer than the two days to check the application. To allow for this, for integrated development or development requiring concurrence, the assessment period starts at the earlier of 14 days after the development application is lodged or the date the application is referred to the relevant concurrence authority or approvals body.[5]

What stops the clock?

The assessment period ‘clock’ can be stopped by:

  1. The consent authority, concurrence authority or approvals body issuing a request for additional information in accordance with the Act and Regulation; or
  2. The applicant ‘modifying’ the development application within the assessment period, where the amended application is accepted by the consent authority.

How these two processes operate to stop the assessment clock is set out below.

Additional information requests

It is common during the development assessment process for a decision maker to require additional information in order to properly consider an application. The assessment ‘clock’ can be ‘stopped’ if:

  1. the consent authority makes a request for additional information under clause 54 of the Regulation within 25 days from the start of the assessment period;[6] or
  2. a concurrence authority or approvals body makes a request for additional information, within 25 days of the date the authority received the development application from the consent authority[7].

In practice, the relevant period in which a request for further information can be made that will have the effect of stopping the assessment clock is 27 days (because of the additional two days allowed under clause 106(c) of the Regulation) unless the application is for integrated development or development which requires concurrence or an approval from another body[8]. If the consent authority asks for additional information in this period then the assessment period clock stops on the day of the request. If a concurrence or approvals body makes the request, then the assessment clock stops on the day that the consent authority receives the request from the concurrence or approvals body. If more than one request for additional information is made while the assessment clock is stopped then the clock stays stopped until all requests have been addressed.

The assessment clock can also be stopped if, in relation to integrated development which requires consent under the National Parks and Wildlife Act 1974, the Chief Executive of the Office of Environment and Heritage is of the opinion that it necessary to consult with an Aboriginal person, land council or other organisation before a decision concerning the general terms of approval can be made and the consultation commences within 25 days after the date on which the development application is forwarded to the Secretary of the Office of Environment and Heritage[9] In this case the clock is paused for the consultation period, provided this is not longer than 46 days from the date on which the development application was lodged with the consent authority.

To be effective, the request for additional information must be made in writing [10], must inform the applicant that the clock has stopped[11] and must be made within the time allowed in the Regulation. It may also specify a reasonable period within which the information must be provided.[12]

An authority can ask for additional information outside the period described above; however, this will not have the effect of ‘stopping the clock’ and will not extend the assessment period or delay the deemed refusal date.

Amending a development application

Amending a development application under clause 55 of the Regulation can also have the effect of resetting the ‘clock’ for the assessment period. Whilst this in itself is no longer controversial, it can be difficult to determine whether and when a particular development application has been amended.

This issue was considered in two recent Land and Environment Court decisions: Australian Consulting Architects Pty Ltd v Liverpool City Council [2017] NSWLEC 129 and Lateral Estate Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 6. In both cases the applicant argued that an exchange of correspondence between the applicant and council constituted an amendment of the development application such as to restart the assessment period and push back the deemed refusal date to a date within 6 months of the commencement of the appeal. In each case the Court found that the ‘dribs and drabs’ approach to making changes to the application was insufficient to constitute an amendment to the development application for the purpose of clause 55, and did not restart the clock for assessing the application. In Australian Consulting Architects the Court clarified that, for this to occur, it would be necessary for the applicant to put a settled, composite proposal to the consent authority and for this to be accepted by the authority for assessment and determination.

When does the ‘clock’ restart?

The assessment period clock restarts when the applicant:[13]

  1. gives the information requested to the consent authority, or
  2. notifies the consent authority (in writing) that the information will not be provided; or
  3. does not give the information in the reasonable period specified in the notice, or any further period of time which is allowed by the authority.

If the request for additional information came from a concurrence authority or referral body, then the assessment clock restarts 2 days after the consent authority refers the requested information to that entity (or notifies it that the information will not be provided).

When identifying when the assessment periods ends, it is also important to remember that s 36 of the Interpretation Act 1987 prevents any assessment period from ending on a Saturday, Sunday, or public holiday. In these cases the next working day is taken to be the last day of the assessment period.

It may be difficult to work out whether the clocks have restarted where:

  1. the applicant has provided some, but not all of the additional information required, or the information provided is inadequate; or
  2. the consent authority informally extends the time period in which the information is required to be provided.

When the additional information is inadequate

If the information provided in response to a request for additional information is inadequate, or if further additional information is required, the consent authority can stop the assessment ‘clock’ again and request further information. If the new request is made within the relevant 27 day period then this subsequent request can also ‘stop the clock’. In calculating the 27 day period in which any subsequent request for additional information may be made, any days for which the assessment clock has already been stopped are not counted.

When the period for the provision of information is deemed to have been extended

As noted above, if an applicant does not provide the information within the time specified in the request for additional information/the stop the clock notice, then the clock will generally restart after that date has passed. However, the time for the provision of the additional information can be deemed to have been extended by the authority in certain circumstances.

This situation arose in Corbett Constructions P/L v Wollondilly Shire Council [2017] NSWLEC 135. In that case the Council had asked the applicant to provide a substantial amount of additional information within 28 days in relation to a development application for a large medium-density residential development. After the deadline had passed an exchange of emails took place between the applicant and the Council in which the applicant indicated that the additional information would be provided “in the coming weeks” and the Council acknowledged and appeared to accept the delay. The Land and Environment Court found that the Council’s actions effectively amounted to an implied extension of time for the provision of the additional information, thus delaying the restarting of the assessment clock and the date on which the 6 month appeal period started. To avoid this uncertainty, any extensions of time for the provision of the additional information should be given formally in writing by the Council and expressly state that the stop the clock provisions remain in effect.

Conclusion

It is important for a development applicant and consent authority to know the date when an application must be determined or will otherwise be deemed to be refused. To be able to do this it is necessary to consider whether, when and for how long the assessment clock was ‘stopped’ in accordance with the principles set out above.