Deemed Refusal after 40 Business days: When to pull the merits appeal trigger?

Deemed Refusal – Class 1 (Land and Environment Court Proceedings) for merits appeal

Having a streamlined approval for your development is key to meeting your development plans and timeframe. If you are submitting a development approval, understanding the process is crucial. Deemed Refusal is a key to ensuring that there are limited delays in the approval process for homeowners, property developers, and builders navigating development approvals.

This short insight article focuses on ‘Deemed Refusal’ by Local Council and your legal rights to challenge the Council under section 8.17 of the Environmental Planning and Assessment Act 1979 (EPA Act) (NSW) at the Land and Environment Court of NSW (L&E Court). The similar appeal processes apply under relevant environmental and planning legislations in different States and Territories of Australia, but this article is mainly intended for NSW jurisdiction. Merits-appeal, in effect, can expedite the development assessment period by way of negotiation and conciliation under the L&E court’s guidance for any disputes.

Timeframe for appeal of ‘Deemed Refusal’ by Council

Where a consent authority (Local Council) fails to determine a development application within the statutory assessment period (commonly 40 days) in NSW under section 4.59 of the EPA Act, the development application may be treated as a deemed refusal. Longer assessment periods apply for integrated and designated development (60 days) and State Significant development (90 days) for deemed refusal by consent authority. It is also important to note that Council does not have to give you specific reasons for delay of the assessment period. You can simply take the matter to L&E court to expedite the deadlock situation with Council.

A deemed refusal will trigger the appeal ground for applicant to commence a Class 1 merits appeal in the L&E Court without waiting for a formal refusal. Upon the commencement of Class 1 proceedings, the L&E Court considers the development application afresh, exercising the functions of the consent authority and determining the matter on its planning merits, rather than reviewing the legality of the authority’s delay or inaction.

A deemed refusal appeal is not about proving council delay or fault. Instead, the Court assesses the proposal afresh on its planning merits, effectively stepping into the role of the consent authority. For property developers, this can be a strategic legal tool to break approval deadlock or to cut off any uncertainty associated with the Council’s decision-making process. Expert reports will play a role in considering the merits of a matter.

Merits appeal process includes a mandatory conciliation process under section 34 of the Land and Environment Court Act 1979 (NSW) and independent Commissioner at L&E Court can facilitate mediation between the parties for any deadlock at the merits appeal stage. This is the cost-effective way before taking the matter to the full hearing stage by a Judge at the L&E Court. If the conciliation is unsuccessful, Commissioner will determine the matter and guide the parties for next stage of hearing.

Merits appeal at L&E court can help to maintain development project momentum with financiers and obtain an independent merits-based determination where time to deadline of development projects, financing options, or commercial certainty is critical to any property developers and builders.

We recommend seeking legal advice as early as possible, if you would like to exercise your legal rights to make a merits appeal for your development project in NSW and elsewhere.

How can PCL Town Planning Lawyers help you?

Our experienced town planning lawyers at PCL Lawyers can assist you every type of planning law enquiry including ‘Deemed Refusal’ of the development application by consent authority, Council. We can provide clear and concise commercially minded legal advice to your business projects so that you can make informed commercial decisions.

We are great problem-solvers with a keen commercial mindset and industry knowledge. We strive to be your strategic legal advisors that can help you make the right and informed decision efficiently and quickly.

About The Author - Tin Min

Tin is an experienced corporate and contracts lawyer with nearly 8 years of experience in commercial and corporate law as an in-house legal counsel before joining PCL Lawyers in Sydney. He has...