A number of important amendments to the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) commenced on 28 February 2011, relating to:
- the time limits applying to merit appeals to the Land and Environment Court
- costs payable in the event that an amended development application is filed during the course of proceedings
- a consent authority’s internal review procedures (and the appeal rights which flow from them).
It is imperative that applicants and consent authorities alike are aware of the changes which have now commenced given that they apply to all development applications lodged with a consent authority on or after 28 February 2011 (and determinations of modification applications made after 28 February 2011).
This is the second round of amendments introduced by the Planning Appeals Legislation Amendment Act 2010 (NSW) (Amending Act). A new conciliation-arbitration scheme in the Land and Environment Court was introduced on 7 February 2011 for small scale residential development. Those changes are now reflected in the Land and Environment Court Act 1979 (LEC Act).
Shortened time period for appeals to the Land and Environment Court
One of the most important changes to be aware of is the reduction of the time period within which a merit appeal can be lodged with the Land and Environment Court against a consent authority’s determination of a development application.
Previously, an applicant had 12 months from the date of the consent authority’s determination, or deemed refusal, of the applicant’s development application to lodge an appeal. That period has been reduced to 6 months.
The EP&A Act now provides that the same appeal period – 6 months - applies to the determination of a consent authority with respect to a modification application (including a determination on a review).
The 6 month appeal period also applies to appeals against a consent authority’s decision that it is not satisfied as to a “deferred matter” under a deferred commencement consent.
Also, the Planning Assessment Commission and Joint Regional Planning Panel are now required to be notified (and have a right to be heard in the same manner as a party to the proceedings) where there is an appeal in respect of a matter that they have determined.
Costs under s97B
Of significant interest to both applicants and consent authorities will be the changes to the costs orders provisions under section 97B of the EP&A Act.
Previously, where an applicant obtained leave to rely on an amended development application (other than to make a minor amendment), the Court was required to order that the applicant pay those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal.
While it still remains the case that the Court has no discretion about whether to make a costs order, the section has been amended to confine the extent of the costs for which an applicant will be liable. The section now provides that the Court must make an order for the payment by the applicant of those costs of the consent authority that are “thrown away” as a result of amending the development application. Arguably this will reduce the magnitude of costs orders under s97B given that their subject matter has been narrowed.
Internal reviews of decisions
Prior to the commencement of the Amending Act, applicants could request a review of a council determination concerning a development application pursuant to section 82A of the EP&A Act. However Councils were not obliged to conduct the review, and there was no right of appeal against the decision resulting from the review (nor in relation to a decision not to conduct a review at all).
Now, on a request being made for a review, a Council (or delegate of council) must conduct a review in accordance with the new provisions set out in section 82C. The procedures are also supported by amendments to the Environmental Planning and Assessment Regulation 2000 (NSW) (Regulation) (which also commenced on 28 February 2011) which relevantly provide timeframes for rejecting a development application, timeframes for requesting a review and determining a review application as well as issues concerning notification, public participation and fees.
Further, section 97 now provides a right of appeal against a determination on a review under s82A.
As a result of the Amending Act, the EP&A Act now also expressly provides for two additional types of internal reviews by a local council (or delegate of council) in the development application process:
- a review where a development application is not accepted (section 82B), and
- a review where a modification application is refused or conditions imposed (although this type of review is not available for modifications involving minor error, misdescription or miscalculation) (section 96AB).