Bick & Steele: Development Consent Appeal Lawyers
How we can help
Based in Sydney, we assist clients across NSW in relation to development consent appeals. At Bick & Steele, we can assist by:
advising applicants for development consent regarding their appeal rights if:
their development application has been refused (actual refusal); or
their development application is deemed to have been refused (deemed refusal). A deemed refusal can occur where the consent authority takes too long to determine a development application.
advising objectors to proposed development regarding their:
rights to object to the proposed grant of development consent; and
rights to appeal against any decision to grant development consent.
representing you in any appeal brought in the Land and Environment Court in relation to a decision to grant (or not to grant) development consent.
preparing persuasive objections to proposed development.
Legislative Overview
Consent authorities
The Environmental Planning and Assessment Act 1979 (EP&A Act), sets out a framework for the assessment and approval of the development of land.
Broadly speaking, development which requires consent can be approved by the following “consent authorities”:
in the case of complying development, a private certifier;
in the case of State Significant Development, the Independent Planning Commission (under delegation from the Minister for Planning);
in the case of regionally significant development, the Sydney district or regional planning panel for the area; and
in other cases:
for development that is not “integrated” or “contentious”, the relevant local council; and
for development that is either “integrated” or “contentious”, the relevant Local Planning Panel (under delegation from the local council).
Prescribed timeframes for assessing applications for development consent
The EP&A Act also prescribes the timeframes within which a consent authority must assess an application for development consent.
Those timeframes are:
for State Significant Development, 90 days;
for integrated development, 60 days; and
for other development, 40 days.
These timeframes are subject to adjustment by various “stop the clock” provisions which can extend the time for assessment.
Appeal rights
The EP&A Act also sets out the appeal rights which various classes of persons have regarding a decision to approve or refuse an application for development consent. These appeal rights include:
for applicants for development consent, the right to bring a “merits” appeal within 6 months from the date of any “actual” or “deemed” refusal of an application for development consent. A “deemed” refusal arises where the consent authority takes longer than the prescribed timeframe to assess an application for development consent;
for objectors to State Significant Development or “integrated” development, the right to bring a “merits” appeal within 28 days; and
for any person to bring “judicial review” proceedings within 3 months.
In a “merit appeal”, the Court effectively “stands in the shoes” of the consent authority and remakes its decision on the merits. In so doing, the Court can consider fresh evidence.
In “judicial review” proceedings, the role of the Court is typically limited to determining whether a decision by a consent authority to approve or refuse an application for development consent was lawful (as opposed to determining whether it was the “correct” decision on the merits). The scope for fresh evidence is limited.
Key steps in the development consent appeal process
A merits appeal will be heard in the Class 1 jurisdiction of the Land and Environment Court. The key steps in a typical development consent appeal are summarised in the following chart. These steps are based on the “usual directions” for Class 1 appeals published by the Land and Environment Court. The process varies slightly, depending on whether the proposed development falls within the “residential stream” or the “development appeals” stream.
Litigation is inherently unpredictable and that the particular steps and timings may vary widely from case to case. For example, in some “residential” appeals the Conciliation Conference and Final Hearing (if required) are often held on the same day. This is known as section 34AA.
Judicial review proceedings are heard in the Class 4 jurisdiction of the Land and Environment Court. These proceedings would normally take at least 6 months to finalise, but the timing can vary widely in any particular case.
Our experience
We are a wholly independent law firm with an excellent track record acting for clients in development appeals (including objections) brought in the Land and Environment Court.
We regularly represent applicants and objectors in merits appeals with a success rate >95%. Many of these matters were resolved by agreement at an early stage avoiding the need to proceed to a final hearing.
Examples of development consent appeals with respect to which our Team have demonstrated their experience advising on these matters can be found here.
Contact us
If your application for development consent has been refused (based on either an “actual” or “deemed” refusal), or you wish to object against proposed development, please contact us to discuss.