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The information contained in this fact sheet is current as at 18 October 2006.

Topic 2 - Planning and Development

2.1 NSW Planning and Assessment Law

2.1.3. Appealing Development Consents and Major Project, Concept Plan and Critical Infrastructure Approvals

If you want to take legal action to challenge a decision regarding a development application, it is important to act quickly. Otherwise, even if you can establish a breach of the law, the Court may find that the delay in bringing proceedings outweighs the mischief caused by the illegality.

Appeals about decisions to grant or refuse development consents in New South Wales are heard by the Land and Environment Court. There are two forms of appeal – merits appeal and judicial review. It is important to understand the difference between these two types of appeal.

The types of appeal which will be available in relation to a given development application depend on whether it is categorised as designated development, non-designated development, major project, concept plan or critical infrastructure.

For more information on the procedural aspects of environmental litigation, see Section 2.1.5 – Legal Proceedings in the Land and Environment Court.

Note: The information contained in this publication is for general reference only. If you are contemplating legal action, you should seek legal advice on the specific facts of your case as soon as possible.

2.1.3.1. Merits Appeals – Class 1

In a merits appeal, a proponent or objector can appeal against the decision of a consent authority to grant or refuse consent to a development application. This is called a ‘Class 1' appeal. The person who initiates the appeal is asking the Court to re-make the decision about whether consent should be granted or refused, and if it is to be granted, on what terms.

Merits appeals are heard by a Judge or Commissioner, who stands in the place of the original decision-maker and has the same powers to reject or consent to the proposal, and to impose conditions of consent.

The Judge or Commissioner will take into consideration all of the materials submitted with the original application, including any fresh evidence. Additional expert evidence on the impacts of the proposal is usually submitted, and increasingly the Court is tending towards appointing its own experts (Court appointed experts) to give evidence on non-contentious matters. Merits appeals are usually informal in nature, and the rules of evidence do not apply.

The Court is required to take into consideration the same issues as the original decision-maker in deciding whether to approve the development, such as the likely environmental impacts of the proposal, and whether it is consistent with the objectives of the zone in which it is situated.

Merits hearings are available for:

• an appeal by the proponent in relation to a refusal or deemed refusal or against a particular condition of consent of a development application determined under Part 4 of the Environmental Planning and Assessment Act 1979; or
• an appeal by the proponent in relation to a refusal of a major project or concept plan, provided that the project has not been the subject of a commission of inquiry under section 119 of the Environmental Planning and Assessment Act (see Section 2.1.6 Commissions of Inquiry) or an independent hearing and assessment panel; or
• an appeal by an objector to a designated development or a major project which would have been designated development if Part 4 of the Environmental Planning and Assessment Act applied to the application, provided that there has been no concept plan approval and provided that the project has not been the subject of a commission of inquiry or a report by an independent hearing and assessment panel.

Appeal by a proponent

If a development application is rejected or the proponent is dissatisfied with the conditions of consent, he or she can bring a merits appeal within 12 months of receiving written notification of the consent authority's decision. Merits appeals for proponents are available for both designated development and non-designated development.

If the consent authority takes more than 40 days to reach a decision (or more than 60 for development which is designated, integrated, or development which requires concurrence) then there will be a ‘deemed refusal' of the application, and the developer may commence a merits appeal.

Merits appeals are also available for proponents in relation to refusals of applications for major projects and concept plans, provided that the project is not a critical infrastructure project, and the project has not been the subject of a commission of inquiry or a report by an independent hearing and assessment panel. Merits appeals of major projects and concept plans are not available to proponents which are public authorities. Merits appeals by proponents must be commenced within 3 months after receipt of the Minister's notice of determination.

Can objectors be joined as parties to a proponent's merits appeal?

Yes. If a proponent lodges a merits appeal against a council's decision in relation to a designated development, then the consent authority must notify any objectors of the appeal, and those objectors are entitled to be heard at the appeal as if they were a party to the appeal. If an objector wishes to attend a merits appeal and be heard, then they must apply to the Court within 28 days of the date of the notice by writing a letter to the Registrar indicating their wish to do so.

An objector may also be permitted by the Court to join a proponent's merits appeal in relation to an application for development consent if they can show that they are able to raise matters that might not otherwise be raised.

If a proponent files an appeal against a decision made by the Minister in relation to a major project which would have been designated development if Part 4 of the Environmental Planning and Assessment Act applied to the application, then each objector to the application is required to be given notice of the appeal by the Minister. An objector is entitled to apply to the Court within 28 days of receiving notice of the appeal to be heard at the appeal as if the objector were a party to the appeal.

It is possible, with the permission of the Court, for an objector to be joined as a full party if that is necessary in order for all matters in dispute to be resolved.

Can objectors be joined to non-designated development merits appeals?

There is no express right for objectors to be heard in relation to appeals concerning non-designated development. However, in practice, the consent authority may often call objectors to give evidence at the hearing, and objectors are often granted permission (or leave) by the Court to call evidence, cross-examine witnesses and make submissions, although this does not extend to the right to appeal against any final decision.

Objectors may also apply to the Court to be involved as a full party to the proceedings if they can show that they are able to raise issues which will not be adequately addressed by the other parties, or that it is in the public interest or the interests of justice for them to become a party.

Appeal by an objector against a designated development

Any person who lodged a written objection to an application for designated development during the submission period can bring a merits appeal against a decision to grant development consent.

The decision-maker must notify each objector by letter within fourteen days of a decision being made to grant or refuse development consent. An objector must lodge an appeal within 28 days after the notice was given.

Appeal by an objector against major project approval

Any person who made a written submission to the Director General in relation to an application for approval of a major project, which would have been designated development if Part 4 of the Environmental Planning and Assessment Act applied, can appeal to the Court against a decision of the Minister to approve the project provided they do so within 28 days of the date of the notice of determination.

There is no right of merits appeal if approval for a concept plan has been granted or if the application was the subject of a commission of inquiry or a report of a panel of experts.

Costs

Each party in a merits appeal usually pays their own legal costs, unless the Court considers that it is fair and reasonable to order one party to pay another's costs. For example, if an applicant withdraws a case just before the hearing when costs have been expended preparing the matter then they may be ordered to pay the other party's costs.

Appeals from Merits Decisions

If a Judge or Commissioner of the Land and Environment Court has decided to approve or reject the development application, then there is no further merits appeal available to the developer, the consent authority (original decision-maker) or objectors.

If a Commissioner made the decision and it appears that the Commissioner made a legal error in determining the appeal, a party to the proceedings may appeal against the decision. These appeals, known as judicial review, are heard by a Judge of the Land and Environment Court.

If a Judge made the decision and it appears that the Judge made a legal error in determining the appeal, a party to the proceedings may appeal to the Court of Appeal.

2.1.3.2. Judicial Review – Class 4

In a judicial review case, the party who initiates the case (‘the applicant') tries to show that the consent authority (decision-maker) made a legal error in the decision-making process which led to the grant of development consent. This is called a ‘Class 4' appeal.

If, for example, the consent authority failed to follow the proper procedures in granting a consent, or did not have power to grant consent, the Court may declare that the development consent is invalid. Any person may commence judicial review proceedings in relation to a development consent.

Judicial review cases are always heard by a Judge and are formal proceedings where the rules of evidence apply.

The role of the Court in a judicial review case is simply to determine whether the development application was decided in accordance with the law. It is not concerned with the merits of the proposal, that is, whether it was a ‘good' or ‘bad' decision.

The Court may only consider evidence as to the materials which were before the consent authority at the time that it made the original decision (the development application and any supporting documentation), and evidence of how the matter was determined (for example, internal council reports, the minutes of council meetings).

The Court will not usually consider any new evidence or hear experts or objectors in relation to whether or not the development application should be granted. However, expert evidence may be called, and often is, to establish whether there has been a breach of the law, and if so, what environmental harm may flow from that.

For example, evidence may be called to establish whether a development is likely to have a significant impact on threatened species. The Court has issued a Practice Direction which regulates the conduct of experts who give evidence in the Court.

Even if a development consent is overturned in judicial review proceedings, there is nothing to stop the developer from reapplying for consent for the same development (unless the proposal is found to be prohibited). The consent authority may again decide to approve the development, but following the correct procedures.

Time Limits

Proceedings for judicial review must be brought within 3 months of the consent authority publishing notice of its decision to grant consent in a local newspaper.

Costs

Judicial review proceedings are usually very expensive to conduct, depending on the complexity of the facts and issues involved.

In judicial review proceedings, the loser is usually ordered to pay the winner's legal costs unless there are special circumstances. However, if a case raises significant matters of public importance, the Court may depart from this rule and order that each party bear their own costs, even where the applicant has been unsuccessful. The Court rarely exercises its discretion to depart from the usual rule as to costs and the exercise of this discretion should not be relied upon in judicial review proceedings.

Table 2.1 – Development Appeals Table (Part 4 Environmental Planning and Assessment Act 1979)

Third parties are those people who are not the proponent of the development and not the decision-maker. They tend to be interested members of the community or affected landholders.

Table 2.2 – Project Appeals Table (Part 3A Environmental Planning and Assessment Act 1979)

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