How to appeal a Council (Development Application) Decision

Lodging a Development Application (DA) with council (and dealing with their requests and delays once it is lodged) is an already emotional and stressful endeavor.

Having a DA refused (or having it just take so long that you are no longer prepared to wait) and considering appealing, can be daunting.

Appealing a council decision takes a significant amount of expertise, but it is a task that we are here to help you with.

When is my DA refused?

This question sounds silly. But, as you’ll see, it’s not quite as silly as it seems.

Generally, after submitting a DA, applicants go through the lengthy, costly and, sometimes, traumatizing process of dealing with the council.

This can involve numerous requests for information, amendments to plans (and providing more information) and, sometimes after all of this, council still refuses the application.

If you’re at this stage, you have likely received a Notice of Determination (refusal). This is an ‘actual refusal’ and you know, for certain, that your DA has been refused.

If you are the applicant and if you have received an actual refusal, you are generally entitled to appeal that refusal to the Land and Environment Court of New South Wales.

Even if, however, council hasn’t yet actually refused your DA but it is just taking too long, it is important to understand that you may still have the right to appeal (now… without waiting for an actual refusal).

If council does not determine your DA within a certain period of time (as little as 42DAYS), for the purpose of appealing the decision to Court, you can treat the council’s delay as a deemed refusal.

Many of our clients just do this anyway (deem refuse it that is). This is because, currently, many councils are significantly behind (and take many months or even years) and because the Court’s procedures can hurry the process up and get a quicker result.

How (where) do I appeal?

Whether it is because council has actually refused your application (at which time your only real choices are to appeal or walk away and abandon your project) or you are just not willing to wait a day longer, the process to appeal council’s refusal of your DA is to take it to Land and Environment Court.

How does the appeal run?

The Court has Commissioners (and Judges) that have expertise generally in planning (often architectural and engineering too) and are either also lawyers or are otherwise trained in the legal process as it relates to these appeals.

They are experienced in dealing with DAs at an appeal level and the process can often help to take the emotion that comes with the DA process out of the equation (or at least deal with it in a level and appropriate way).

The Court’s processes (particularly in the early ‘conciliation’ stages) are entirely designed around finding outcomes.

If your DA can’t be resolved by approval at conciliation, it will go to a hearing where a Commissioner will decide it de novo (from the beginning or afresh and, effectively, sitting in the council’s shoes).

Are there time limits to appeal?

Whilst this can be (depending on the facts) an inherently complicated question, the broad answer is yes.

Generally, you only have six months from the time that your DA is refused (on deemed to be refused) to appeal.

This time limit (particularly the six months from the deemed refusal date) can mean that council’s own delays can (if you are not careful) mean that you as applicant can lose your right to appeal the very decision that they are delaying making.

This is why it is important to seek expert advice without further delay. If there is any chance that time limits are an issue, the last thing that you want to do is be seen to knowingly continue to accept the delay.

How can the lawyers at Auslex help?

The Land and Environment Court is a jurisdiction that requires a very specific level of expertise to appear successfully.

Not all lawyers know how to do it (and do it well) and most suburban law firms don’t practice in the area at all.

Even when law firms do practice in the area, they often decide to go onto government panels and do work local councils meaning that they often may not be able to take on your case.

At Auslex, we have lawyers with significant expertise in the area, the Land and Environment Court and the way that local councils operate.