The Environmental Planning and Assessment Act 1979 (NSW) together with Local and State Environmental Plans (LEPS) and (SEPS) regulate what you can do with your property in NSW (including how a property can be used and what can be constructed on a property).
In order to obtain consent in relation to works to, or uses of, a property, a development application needs to be made with a consent authority (unless the proposed use or works are considered a complying development).
The consent authority is usually the Council in which the property is located. When a development application is lodged, it will evaluate the application and issue a determination.
What if Council does not respond to the application?
If Council fails to respond within 42 days of receiving a validly lodged development application (or 62 days for designated developments or integrated developments) then the application will be deemed to have been refused.
Can Council consent to the application with conditions?
Once Council evaluates a development application, it can either:
- consent to the application unconditionally; or
- consent to the application, subject to conditions.
It is not uncommon for Council to consent to an application and require that certain conditions are satisfied in order for the consent to be valid.
What can you do if you’re not satisfied with Council’s determination?
If you are not satisfied with Council’s determination you can either:
- seek an internal review of Council’s determination; or
- appeal to the Land and Environment Court.
Where an internal review is requested, it will be conducted by another officer within Council. The independent officer will review Council’s determination and confirm whether the determination should be upheld or approved (with or without conditions).
Seeking a review of Council’s determination is the most cost effective way to appeal Council’s decision. It is for this reason that we recommend our clients consider requesting an internal review of Council’s determination before appealing to the Land and Environment Court.
You can also bypass the internal review and appeal directly to the Land and Environment Court.
Note: You have 6 months to appeal a refusal from Council with the Land and Environment Court.
Before you lodge an appeal with the Land and Environment Court, you should ensure that:
- Council has been paid the development application fee;
- Council has been provided with all relevant documents;
- copies of all relevant documents provided to Council are in your possession;
- you have complied with all procedural requirements that were required prior to development consent being granted;
- plans attached to the development application satisfy Schedule A to the Class 1 Practice Note of the Land and Environment Court
- you have a copy of Council’s notice of determination, where the application was refused by Council.
Can the Land and Environment Court consent to a development application?
Yes, the Land and Environment Court has the the power to consent to a development application where Council:
- refused to consent to the development application; or
- failed to respond to the development application within the required timeframe.
Note: If Council has imposed conditions in their approval of the application, the Land and Environment Court also has the power to consent to the development application without conditions.
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