The council said no. That is not the last word on it.
A refusal, a deemed refusal where the council has not determined the application in time, or a condition that makes the project unviable can each be taken to the Land and Environment Court, where the application is decided again on its merits.
The Land and Environment Court is a superior court of record with a planning jurisdiction. On a Class 1 development appeal it is not confined to reviewing the council’s reasoning for legal error: it exercises the same functions the consent authority had, and determines the development application again, on the merits. We act for builders and developers in these appeals, against councils.
Three ways in
- Refusal. The council has determined the application and refused consent, and the appeal is against that determination.
- Deemed refusal. Where a council does not determine the application within the period prescribed by the Environmental Planning and Assessment Act 1979 (NSW) and its regulation, the application is taken to have been refused and the applicant’s right of appeal under Division 8.3 of that Act arises. This is the route where an assessment has stalled rather than failed.
- Conditions. Consent has been granted, but on conditions that change the economics of the project — contributions, staging, deleted levels, use restrictions. Conditions are frequently amended or deleted on appeal, but understand what the appeal is: it is an appeal against the determination, so the Court re-determines the application rather than editing one condition in isolation.
Strict time limits apply, and they run from the determination. The Act fixes a limited period, running from the date the applicant receives notice of the determination, or, on a deemed refusal, from the date the application is taken to have been refused. Do not let it run down while an assessing officer is still discussing amendments.
What the appeal is actually about
Section 4.15 of the Act sets out the matters a consent authority — and so the Court, standing in its place — must consider in determining a development application: the environmental planning instruments, development control plans and planning agreements that apply to the land, the likely impacts of the development, environmental as well as social and economic, the suitability of the site, any submissions made, and the public interest. Reasons for refusal are commonly a mix of genuine planning problems and matters answerable with better evidence or amended plans; separating the two is the first piece of work.
Where the obstacle is a numerical development standard — height of buildings, floor space ratio, minimum lot size — the usual path is a written request under clause 4.6 of the local environmental plan. It has to demonstrate both that compliance with the standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. Those are two separate limbs, and the second is the one that more often decides the request. Read the plan itself, too: some instruments put particular standards outside clause 4.6.
How a Class 1 appeal runs
Class 1 development appeals are commonly listed for a conciliation conference under section 34 of the Land and Environment Court Act 1979 (NSW) before any hearing. A commissioner conducts it, often on the site. If the parties reach agreement, and the commissioner is satisfied the agreed decision is one the Court could have made in the proper exercise of its functions, the commissioner disposes of the proceedings in those terms — frequently on amended plans answering the council’s contentions. Otherwise the matter proceeds to a hearing on evidence: town planning, plus whatever the contentions require — heritage, traffic, acoustics, urban design, flooding, arboriculture.
Costs work differently in this jurisdiction. Under rule 3.7 of the Land and Environment Court Rules 2007 (NSW), the Court is not to make an order for costs in Class 1 proceedings unless it considers the making of the order to be fair and reasonable in the circumstances. The ordinary position is that each party bears its own costs, whichever way the appeal goes. That belongs in the commercial calculation at the outset.
Merits appeal or judicial review
A Class 1 development appeal is a merits appeal brought by the applicant, producing a decision on the application. Where the complaint is instead that a council or a planning panel made a legal error — acted beyond power, failed to consider something it was bound to consider, denied procedural fairness — that belongs in the Court’s Class 4 judicial review jurisdiction. Different question, different remedy: the Court can set the decision aside, but it does not grant the consent in the council’s place. Which door you are at depends on what actually went wrong.
We appear in the Land and Environment Court ourselves, and brief counsel where a matter warrants it. Which of the two a matter calls for is a decision about that matter rather than a fixed rule.
Questions developers ask us.
The council has not decided our application. Can we appeal anyway?
Where a council does not determine a development application within the period prescribed by the Environmental Planning and Assessment Act 1979 (NSW) and its regulation, the application is taken to have been refused, and a right of appeal arises. Deemed refusal appeals are commonly used where an assessment has stalled. Once proceedings are on foot, the Court’s directions require the council to file a statement of facts and contentions, which is often the first time its objections are set out in one place.
Is a Class 1 appeal a review of the council’s decision?
No. It is a fresh determination of the application on its merits. The Court exercises the same functions the consent authority had and applies the same considerations under section 4.15 of the Act. That is different from judicial review in Class 4, which asks whether the decision was made lawfully and can set it aside without granting consent in the council’s place.
Can we change the plans once the appeal has started?
Amended plans are a normal part of Class 1 development appeals, and appeals resolved at a conciliation conference commonly resolve on plans amended to answer the council’s contentions. The Court’s practice notes set requirements about how and when amended plans are filed, served and, where relevant, re-notified, so the timing is worth planning rather than improvising.
Our building breaches the height standard. Is that fatal?
Not on its own. A contravention of a numerical development standard is usually addressed by a written request under clause 4.6 of the local environmental plan, which must show that compliance is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify the contravention. The second limb is the one that more often decides the request. Check the plan, though — some standards sit outside clause 4.6.
If the appeal succeeds, do we recover our costs from the council?
Usually not. Under rule 3.7 of the Land and Environment Court Rules 2007 (NSW), the Court is not to make a costs order in Class 1 proceedings unless it considers the order fair and reasonable in the circumstances, so each party ordinarily bears its own costs whatever the outcome. That is a feature of the jurisdiction and belongs in the decision to appeal from the start.
Tell us what's happened.
Tell us what the council determined and when you received the notice. You’ll get a straight answer about whether an appeal is available, what running it would involve, and what it would cost.
Information on this site is general in nature and is not legal advice, and may have been overtaken by a change in the law. Contacting us does not create a solicitor–client relationship.