Development appeals

This page describes appeals that can be made to the Court against a consent authority’s determination about a development application.

The information here does not apply to appeals concerning certain types of residential developments (and other developments defined by s 34AA of the Land and Environment Court Act 1979).  These appeals are handled differently by the Court and are described separately in residential development appeals.

Practice and procedure

The Court has published a formal document — a Practice Note — that sets out the process and requirements for development appeals. This is called the Practice Note - Class 1 Development Appeals. (PDF , 150.9 KB)

The Practice Note explains the steps that need to be taken before the first directions hearing, at the first directions hearing, at any conciliation conference, before and at any second directions hearing, before and at the final hearing, and the evidence that might be given at the final hearing.

Process for development appeals

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The Land and Environment Court has jurisdiction to hear and finalise proceedings under:

  • s 8.7 of the Environmental Planning and Assessment Act 1979 (the Planning Act) in relation to development applications and

  • s 8.9 of the Planning Act in relation to applications to modify a development consent for different kinds of development.

  • A development appeal can be made to the court when:
  • a development application, or an application to modify development consent has been made by the applicant to a consent authority

  • that consent authority has made a determination about the application, or is taken to have refused an application and

  • the applicant is dissatisfied with the consent authority’s determination there is a right of appeal under s 8.7 or s 8.9 of the Planning Act (also see Who can make a development appeal?).

The Court also has jurisdiction to hear and dispose of appeals under s 8.8 of the Planning Act by objectors who are dissatisfied by a consent authority’s determination to grant consent to a development application for designated development. These appeals are referred to by the Court as objector appeals.

An objector appeal can only be made to the Court when (inclusively):

  • the development application, or an application to modify development consents, has been made to a consent authority

  • the proposed development is a designated development, that is (according to s 4.10 of the Planning Act), it is declared to be designated development by an environmental planning instrument or the regulations ( cl 4, Sch 3 of the Environmental Planning and Assessment Regulations 2000 (the Planning Regulations)); a designated development is typically a development that is likely to have a significant impact on the environment, such as a mine, a quarry, a marina or an abattoir

  • the objector made a submission objecting to the development application during the submission period (also see Who can make a development appeal?)

  • the consent authority has given consent to the application and the objector is dissatisfied with the consent authority’s determination.

A development appeal can be made by a person who is entitled to appeal under s 8.7 or s 8.9 of the Planning Act. That is, the person is required to be:

  • an applicant for a development application or an application to modify a development consent for development (check the applicant name on the original application to the consent authority; if the applicant name is different to the name of the person filing the appeal, the person may need to establish that the applicant was authorised to act on their behalf)

  • dissatisfied with the determination of a consent authority with respect to the applicant’s development application or modification application (including a determination on a review under ss 8.28.38.5 or s 8.9 of the Planning Act).

An objector appeal is made by a person who:

  • made a submission objecting to a development application for designated development during the submission period (check the applicant name on the original application to the consent authority; if the applicant name is different to the name of the person filing the appeal, the person may need to establish that the applicant was authorised to act on their behalf)

  • is dissatisfied with the determination of a consent authority to grant consent to that development application. See ss 8.8 and 8.10 as well as ss 1.41.51.6 and Sch 1 cl 8 of the Planning Act for definitions and more information concerning objectors.

A development appeal to the Court under s 8.7 or s 8.9 is generally to be made within 6 months after:

  • the date on which the applicant received notice of the determination of the application or review, or

  • the date on which that application is taken to have been determined (see s 8.7(1)s 8.9 and s 8.10(1) of the Planning Act).

A development application is taken to have been determined (that is, it is deemed to have been refused) if:

  • the development application was lodged with the consent authority

  • a certain period of time has elapsed, and

  • there has been no determination.

For appeals concerning development applications under s 8.7 of the Planning Act, an application is deemed to have been refused (in s 8.11 of the Planning Act and cl 113 of the Planning Regulations) after:

  • 40 days for ordinary development

  • 60 days for designated development or integrated development

  • 90 days for State significant development.

For appeals concerning modification of development consents under s 8.9 of the Planning Act, the deemed refusal period is generally 40 days after the application was made (according to s 4.55 and 4.56 of the Planning Act and cl 122 of the Planning Regulations).

An objector appeal under s 8.8 of the Planning Act is to be made within 28 days after the date on which notice of the determination was given (see s 8.10(2) of the Planning Act).

Steps

Helpful materials

For links to useful Court information and documents, legislation and case studies relating to development appeals, see: Helpful materials.

Development appeals
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Last updated:

17 Dec 2020

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