If your development application (DA) has been sitting with Council for a long time (deemed refusal) or has actually been refused (actual refusal) this article can help you understand your options, the process involved and how you can navigate the planning process more effectively.

Step 1 – An appeal is commenced by filing an application with the NSW Land and Environment Court.

Step 2 – The first time the appeal comes before the Court is the first directions hearing. Parties should be prepared for the first directions hearing to discuss the suitability of conciliation, proposed directions, and hearing dates. The Court will set a date for a conciliation conference (s 34 Conference) to take place.

Step 3 – The conciliation conference takes place. Most Class 1 appeals are resolved through conciliation. The Court encourages parties to engage in meaningful way to attempt to reach agreement and resolve disputes. The conciliation conference commences with a site visit together with the Commissioner and experts from both parties. The Court then reconvenes (usually at Council chambers) to hear submissions and allow experts to confer privately and resolve issues.

Step 4 – If agreement is reached, the matter proceeds to a further directions hearing to finalise the conditions of consent. The Court will then grant consent to the DA.

Step 5 - If agreement cannot be reached, the matter proceeds to a final hearing where arguments and evidence are presented. Both parties and their experts attend and give evidence at the hearing.

Step 6 - The Court will then deliver a judgment either granting or refusing consent to the proposed development.

Costs

Each party bears their own costs in Class 1 proceedings, and costs are rarely awarded against a party unless that party is found to have engaged in unreasonable behaviour or deliberate delays.

It is very hard to estimate how much a Class 1 appeal will cost.

The majority of the costs involved will be consultants’ fees, not legal expenses. Most Class 1 appeals would range from $30,000 for a very simple matter with limited issues up to $80,000 for a more complex matter with multiple issues.

You should budget on reaching agreement during conciliation and limiting your costs, but be prepared that the matter may need to go all the way to a final hearing if some issues cannot be resolved.

Case study

In a recent case, the Applicant lodged a development application for retail development of a heritage building. The proposal was supported by reputable and considered heritage advice.

Council’s heritage adviser supported the development but suggested some design changes.

Six months later, Council raised RFI’s (request for further information) and asked for a contamination report and some further reports. These were provided.

After a further 6 months, Council’s heritage adviser was replaced, and the new heritage adviser suggested radical changes to the building façade. Council raised further RFI’s for more information.

The design changes were adopted, and further information provided to Council. More reports, more consultants, more delay, more expense. The Applicant sought legal advice but ultimately chose to continue to work with Council, trusting that the consent was only a matter of time.

Six months later (now 18 months from lodgement), Council’s second heritage adviser left and a new heritage adviser was appointed. The new heritage adviser suggested the Applicant revert back to the original design! The Applicant refused to make the changes and the DA was determined by way of refusal.

The Applicant commenced an appeal against the refusal. Council raised a host of new (and creative) contentions as to why the development should be refused.

The Class 1 proceedings took approximately 6 months. Ultimately, the Land and Environment Court granted consent to the development application and was critical of Council’s treatment of the heritage issue. The Applicant ultimately sold the commercial retail space at a significant profit. 

Conclusion:

Unless an error is found or new information is provided, a s 8.3 review often results in the Council confirming its original decision.

If your DA has been with Council for a long time or has actually been refused, you can appeal to the NSW Land and Environment Court.

An appeal must be commenced within 6 months of the date of determination of the DA.

The majority of Class 1 appeals are resolved through the conciliation process.

It will always be a commercial decision whether to spend the money to commence an appeal or wait and continue to work with Council.

That commercial decision must take into account the cost of the appeal but also the opportunity cost of doing nothing, weighing the cost of taking action against the cost in terms of delay, consultant’s fees and rising construction costs.