Please note that planning law in New South Wales is in a period of transition. Legislation has been passed that will amend the law with regards to Part 3A. EDO NSW is currently updating this fact sheet and we will make it available as soon as possible after the new provisions come into force.

If you have any queries regarding the current state of planning law, please contact our Environmental Law Advice Line anytime between 2:30 PM-5:00 PM from Monday-Thursday on (02) 9262-6989 (Sydney Office) and 9:00am-5:00pm Monday to Friday (Northern Rivers Office)

2.3.5  Appeals

Appeal rights in relation to Part 3A projects vary depending on whether the approval sought is for a concept plan, project or for critical infrastructure. They also vary for proponents and objectors.

The following table summarises the appeal rights for Part 3A projects. The text below should be consulted for more detail concerning these appeal rights.

All appeals are heard by the Land and Environment Court.

2.3.5.1 Explanation of terms

The information below uses the following terms:

• Merits appeal - this is where the person who appeals asks the Court to reconsider the decision as to whether an approval (or consent) should be granted or refused, or have its conditions varied. Merit appeals are heard in Class 1 of the Land and Environment Court.1
• Judicial review - this is where a person brings proceedings challenging the legal validity of a decision by trying to establish that the consent authority (decision-maker) made a legal error in their decision-making process, eg by not following the process set out in the EPA Act. Judicial review cases are heard in Class 4 of the Land and Environment Court.2
• Third party - third parties are those people who are neither the proponent of the development nor the decision-maker. They are usually interested members of the public or affected landholders.
• Objector - refers to a person who made a written objection against a proposed project during the public submission period.
• Proponent - means the developer, ie the person proposing to carry out the project.

For more information on these terms, and the appeal process in the Land and Environment Court, see Fact Sheet 2.4.

2.3.5.2 Proponent appeals

2.3.5.2.1 Concept plans

A proponent who is dissatisfied with the Planning Minister's refusal to approve or modify a concept plan can appeal against the merits of the decision in the Land and Environment Court (Class 1).3 Any appeal must be brought within 3 months of the proponent receiving notice of the decision, or a deemed refusal.4

However, merit appeals are only available if the development would normally have been a Part 4 development. A merits appeal cannot be brought if:

• the concept plan relates to a critical infrastructure project,
• the proponent is a public authority, or
• if the concept plan has been the subject of a review by the Planning Assessment Commission.5

A proponent can bring judicial review proceedings against a decision by the Planning Minister regarding a concept plan.6 Any proceedings must be commenced within 3 months after public notice of the decision was given.7

2.3.5.2.2 Major projects

A proponent who is dissatisfied with a decision of the Planning Minister in relation to a Part 3A project application can appeal on the merits to the Land and Environment Court (Class 1).8 Any appeal must be brought within 3 months of the proponent receiving notice of the decision, or a deemed refusal.9

Merit appeals are only available if the development would normally have been a Part 4 development.

Even so, merit appeals for a proponent are not available:

• If the development relates to a critical infrastructure project,
• If the proponent is a public authority, or
• if the project has been the subject of a review by the Planning Assessment Commission.10

If the proponent commences a merits appeal, then any person who lodged a written objection during the public submission period must be notified by the Minister of the appeal, and that person is entitled to apply to the Court (within 28 days) to be heard as if they were a party to the appeal.11

A proponent who is dissatisfied with a decision by the Minister regarding an application to modify a project approval, including a deemed refusal, can bring a merits appeal.12

A proponent can bring judicial review proceedings against a decision by the Planning Minister regarding a major project.13 Any proceedings must be commenced within 3 months after public notice of the decision was given.14

2.3.5.2.3 Critical infrastructure approvals

Merit appeals (Class 1) are not permitted, for either proponents or objectors, against a determination which concerns a critical infrastructure project.15

Judicial review proceedings (Class 4) (where a person challenges the legal validity of the Minister's decision under the EPA Act,) are also not available in relation to critical infrastructure projects unless the proceedings are brought, or approved by, the Planning Minister.16 Any such proceedings must be commenced within 3 months after public notice of the decision was given.17

2.3.5.3 Objector appeals

2.3.5.3.1 Concept plans

A third party (objector) cannot appeal against a decision of the Planning Minister to approve a concept plan. The EPA Act does not contain any provisions permitting such an appeal.18

However, any person (a third party, an objector, etc) can bring judicial review proceedings challenging the legal validity of a decision by the Planning Minister regarding a concept plan approval.19 Any proceedings must be commenced within 3 months after public notice of the decision was given.20

2.3.5.3.2 Major project approvals

An objector who lodged a written objection in relation to the project during the public submission period who is dissatisfied with a decision by the Planning Minister to approve a Part 3A project can bring a merits appeal in the Court. Any appeal must be brought within 28 days of receiving notice of the decision.21

Objector appeals are only available if the development would normally have been categorized as designated development under Part 4 of the EPA Act: see Fact Sheet 2.2.

Even so, merit appeals are not available for objectors:

• if the development relates to a critical infrastructure project,
• if there was no concept plan approved for the project, or
• if the project has been the subject of a review by the Planning Assessment Commission.22

If it is the proponent who commences a merits appeal, then any person who made an objection during the public submission period must be notified by the Minister of the appeal, and is entitled to apply to the Court (within 28 days) to be heard as if they were a party to the appeal.23

Any person (a third party, an objector, etc) can bring judicial review proceedings challenging the legal validity of a Part 3A approval.24 Any proceedings must be commenced within 3 months after public notice of the decision was given.25

2.3.5.3.3 Critical infrastructure approvals

Merit appeals (Class 1) are not permitted, for either proponents or objectors, against a determination by the Planning Minister which concerns a decision relating to a critical infrastructure project.26

Nor can judicial review proceedings (Class 4), (where a person challenges the legal validity of a decision under the EPA Act) be brought by any person in relation to a critical infrastructure project, unless the proceedings are brought, or approved by, the Planning Minister.27 Any such proceedings must be commenced within 3 months after public notice of the decision was given.28

1. Land and Environment Court Act 1979, s 17.
2. Land and Environment Court Act 1979, s 20.
3. EPA Act, s 75Q(2).
4. EPA Act, s 75Q(2); EPA Regulations 2000, cl 8E(1), (3).
5. EPA Act, s 75Q(1).
6. EPA Act, s 123; But note limitation in s 75X(5).
7. EPA Act, s 75X(4).
8. EPA Act, s 75K(2).
9. EPA Act, s 75K(2); EPA Regulations 2000, cl 8E(1), (2).
10. EPA Act, s 75K(1).
11. EPA Act, s 75K(3).
12. EPA Act, s 75W(5).
13. EPA Act, s 123; But note limitation in s 75X(5).
14. EPA Act, s 75X(4).
15. EPA Act, s 75K(1)(a), 75L(1)(a) and 75Q(1)(a).
16. EPA Act, s 75T(2).
17. EPA Act, s 75X(4).
18. Cf. EPA Act, s 75Q.
19. EPA Act, s 123; But note limitation in s 75X(5).
20. EPA Act, s 75X(4).
21. EPA Act, s 75L(3), 153; EPA Regulation 2000, cl 8E(1).
22. EPA Act, s 75L(1).
23. EPA Act, s 75K(3).
24. EPA Act, s 123; But note limitation in s 75X(5).
25. EPA Act, s 75X(4).
26. EPA Act, s 75K(1)(a), 75L(1)(a) and 75Q(1)(a).
27. EPA Act, s 75T(2).
28. EPA Act, s 75X(4).

This site was last updated Thursday 17 May, 2012
EDO NSW
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