What to do when the Council Refuses your Development Application
By Peter Micevski, Solicitor, Lovegrove Smith & Cotton
For a developer to use, subdivide, erect or demolish a building, or carry out work on its land, the developer must either obtain development consent from its local Council pursuant to Part 4 of the Environmental Planning and Assessment Act 1979 (NSW) (“the Act”) or the developer’s use of the land must be considered an “exempt development” pursuant to the Act.
The rules for exempt and complying development are covered by the State Environment Planning Policy (Exempt and Complying Development Codes) 2008 (“the Codes SEPP”). The NSW Government has recently increased the number of exempt developments (where no approval required) and extended the range of complying developments (that can receive a fast approval of building work).
Building works that comply with specific standards, can be routinely approved without delay, for example, new single or two storey houses, garages and swimming pools, and additions or alteration to a house. However, if the development proposal goes beyond this scope, the Council may refuse to give its consent to the development.
Where the works are deemed to be complying development, then the certifying authority (an accredited certifier) can issue a complying development certificate (or “CDC”). There are rules in the Codes SEPP as to when a CDC may or may not be approved, as a CDC negates the need for development consent and then a construction certificate.
Where the Council has refused consent to a development application, the developer may request the Council to review its determination within 6 months after the date on which the developer received notice of the determination of that application. The developer, after lodging an application for review, has an opportunity then to give the Council submissions concerning its request for review.
More often than not though, the Council will review its initial determination and, unfortunately for the developer, come to the same determination. Because of this, developers should be encouraged to go straight to the Land and Environment Court if they are dissatisfied with a determination of the Council. A Developer may do so by making an application to the Land and Environment Court within 6 months of the date on which the developer received notice of the determination of that application.
Note though, the developer still has the option to appeal a determination of the Council to the Land and Environment Court even after a review has been conducted.
To initiate an appeal, the developer must prepare and file three copies of the appropriate appeal application (generally a Class 1 Application), and serve a stamped copy of the application on the local Council.
However, before a developer intends on lodging an appeal application to the Land and Environment Court, the developer would be strongly encouraged to seek advice from experienced planning lawyers. This is particularly important, considering that the developer will be going up against the local Council, which will be both well-resourced and experienced in this kind of dispute at the Land and Environment Court.
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© Lovegrove Smith & Cotton 2014