Pulling the trigger: re-enlivening deemed refusal appeal rights

The decision of the Land and Environment Court in Lateral Estate Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 6 (Lateral Estate) suggests that where a developer amends a DA and these amendments are accepted by the consent authority, deemed refusal appeal rights can potentially arise allowing an applicant to commence a Class 1 appeal in the Land and Environment Court after the initial deemed refusal period has lapsed.

When can a Class 1 appeal be filed?

An applicant to a DA may appeal to the Land and Environment Court within 6 months after the date of receipt of a notice of determination or the date on which the application is taken to have been determined under section 82(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act): section 97(1) EP&A Act.

A consent authority that has not determined a DA within the relevant period prescribed by the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) is taken to have determined the application by refusing consent on the date on which the period expires: section 82(1) EP&A Act. Subject to stop the clocks, a DA is deemed to be refused within 40 days for local development, 60 days for designated development, integrated development or where concurrence is required and 90 days for State Significant Development: clause 113 EP&A Regulation.

When will a DA be amended?

Where an applicant seeks to amend a DA, the consent authority must determine whether to accept the amendment and depending on whether the amendment involves additional environmental impacts, must decide whether to re-notify or re-advertise the application. If an amendment results in a change to the proposed development, the application to amend the DA must provide written particulars sufficient to indicate the nature of the changed development: clause 55(2) EP&A Regulation.

In Lateral Estate, the applicant relied on email communication between the applicant and a Council officer regarding conditions and amendments to the staging of the development and the Council officer’s reply to constitute an amendment to the DA. It was argued for the applicant that the Council officer’s reply constituted an acceptance of an amended DA and that the time for the appeal ran from the date of lodgement of the amended DA.

In accepting Council’s arguments and finding that there was no amended DA and that the Class 1 appeal was out of time, Sheahan J held that:

  • The statutory scheme is designed to establish carefully defined time limits and would be completely undermined if any correspondence between the applicant and a council concerning the proposed development would re-start the deemed refusal period.
  • The DA could only be amended with Council’s agreement and the Council officer’s email did not amount to Council accepting the conditions email as an amendment to the DA. An indication of intended further examination of the proposal concerning council’s conditions did not satisfy the requirement of an agreement.
  • The applicant did not make clear that it was seeking to amend the DA and the notations on the mark-ups did not amount to the necessary written particulars of a changed development.
  • “A specific form is not prescribed for an amendment to a DA, but it must be made clear to the consent authority that an amendment is proposed. Only then can the consent authority agree to allow the amendment, and do whatever else it is obliged to do, and only then can “deferred refusal” rights arise again” [93].

Significance for developers: when can the deemed refusal appeal period be re-enlivened?

This decision is significant for developers who do not file a Class 1 appeal during the initial deemed refusal appeal period and who experience significant delays in the determination of a DA after the deemed refusal appeal period has expired.

In order to potentially commence a Class 1 appeal in reliance on the re-triggering of a deemed refusal period, developers must:

  • Make clear to the consent authority that the applicant proposes to lodge an amended DA pursuant to section 55 of the EP&A Regulation.
  • Ensure that the application to amend or vary the DA provides written particulars sufficient to indicate the nature of the changed development.
  • Ensure that the consent authority has indicated its acceptance of the amended application.
  • Ensure that sufficient time has passed since lodgment of the amended DA so that the amended DA is deemed refused as set out in section 82(1) of the EP&A Act and clause 113 EP&A Regulation.

Liability limited by a scheme approved under Professional Standards Legislation.
© ADDISONS. No part of this document may in any form or by any means be reproduced, stored in a retrieval system or transmitted without prior written consent. This document is for general information only and cannot be relied upon as legal advice.