2.2.8 Appeals

2.2.8.1  Applicant can request council to review decision

If the consent authority is a council, an applicant can request the council to review a decision concerning a DA, but not if the decision relates to a complying development certificate, designated development, or for integrated development.1 The council cannot review a decision made more than 12 months before or after the Land and Environment Court has disposed of an appeal.2

2.2.8.2  Merit appeals

An applicant who is dissatisfied with a decision of a consent authority regarding their development application can appeal to the Land and Environment Court within 6 months of receiving notice of the decision.3

An applicant can also appeal against a failure of a council or the Minister to make a decision regarding a DA within the time limits specified in the EPA Act (and Regulations). This is known as a "deemed refusal".4 A DA will be deemed to refused if it has not been determined within 40 days, or within 60 days if the development relates to designated development, integrated development or development which requires concurrence.

One of the major differences between designated and non-designated development is that where designated development is concerned, an objector can bring a merits appeal against a decision to approve the development.

Any person who makes a submission regarding a DA for designated development by way of objection, must be notified of the decision to grant consent and, if they are dissatisfied with the decision to approve the development, is entitled to bring a merits appeal in the Land and Environment Court (Class 1).5 Any such appeal must be brought within 28 days of receiving notice of the decision.6 The applicant for consent can then choose to join the case.7

Yes. If a developer brings a merits appeal in relation to a designated development, then each person who objected to the development during the public submission period must be notified of the consent.8 Each objector then has 28 days to apply to the Court if they wish to be joined to the hearing. This is done by the objector writing a letter to the Registrar indicating that the objector wishes to be joined.9 The Register then notifies all the other parties.10

Yes. The Court has power to join an objector to a merits appeal, even where the appeal does not concern designated development. The Court can order a person to be joined if the Court is of the opinion that the objector will be able to raise an issue which would not otherwise be sufficiently addressed, or if it is in the interest of justice or the public interest that the person be joined to the appeal.11

The EPA Act excludes anyone from bringing a merits appeal in the following cases:

• a dissatisfied applicant for a complying development certificate cannot appeal (on the merits) against a decision to issue or refuse a complying development certificate,12
• decisions made by the Planning and Assessment Commission cannot be appealed if the decision was made by the Commission after a public hearing.13

2.2.8.3 Judicial review proceedings

Any person can bring a legal challenge (judicial review) in the Land and Environment Court (within 3 months of public notification) if there has been a legal error in the way a decision about a development consent was made.14

There are strict time limits on judicial review proceedings: any challenge to the legal validity of a development consent or complying development must be brought within 3 months of from the date on which public notice of the decision was given.15 Public notice is given by the council publishing a notice in a newspaper.16 Each council must keep a note of the date and a copy of the page of the newspaper in which the notice was published.17

See Fact Sheet 2.4 Land and Environment Court for more information on judicial review.

1. EPA Act, s 82A(1).
2. EPA Act, s 82A(2A).
3. EPA Act, s 81(1), 97(1); EPA Regulation 2000, cl 100, and 102.
4. EPA Act, s 82; EPA Regulation 2000, cl 113.
5. EPA Act, s 98(1), 81(3).
6. EPA Act, s 98(1), 81; EPA Regulation 2000, cl 100, 102.
7. EPA Act, s 98(2).
8. EPA Act, s 97(4).
9. Land and Environment Court Rules 2007, Rule 3.4(1).
10. Land and Environment Court Rules 2007, Rule 3.4(2).
11. Land and Environment Court Act 1979, s 39A.
12. EPA Act, s 85A(10).
13. EPA Act, s 23F(2).
14. EPA Act, s 123.
15. EPA Act, s 85A(1); 123; 101, EPA Regulation 2000, cl 137.
16. EPA Regulation 2000, cl 124, 137.
17. EPA Regulation 2000, cl 264(2)(i), 265(1)(j), 266(1)(h), and 267(b).

This site was last updated Thursday 17 May, 2012
EDO NSW
Home | Disclaimer | Privacy | Contact Us | Support Us

This site was last updated Thursday 17 May, 2012
EDO NSW
Home | Disclaimer | Privacy | Contact Us | Support Us