Town Planning Assessment & Approval

Navigating the complex regulatory maze of town planning assessment and approval processes can be daunting for anyone involved in the development process.

We look at the Assessment Pathway, Class 1 DA appeal process and timeline and how you should prepare for your DA application as efficiently as possible to avoid any delays.

In general, levels of Council approval and assessment, and potential impacts to the development consent will depend on the following three situations:

• Are you only seeking Exempt Development?
  For example, you may be thinking about doing a small decking and/or small fencing along the lot boundary.
• Are you also seeking Complying Development?
  For example, you may be considering about a development which meets specified predetermined development standards listed in the Codes SEPP or Council’s LEP.
  You may also need to engage with an accredited certifier to get your desired outcomes for complying development.
• Are you seeking Development Consent including merit assessment?
  This is a formal application for development which requires consent under the NSW Environmental Planning and Assessment Act 1979 (EP&A Act) or equivalent legislation in the relevant States or Territory.

Each situation is different. You will require careful legal analysis, and proactive consultation with architect, town planner including experts/accredited certifiers (arborist, heritage expert) in their relevant fields of technical expertise to formally present your desired outcomes in the assessment stage which is important for both Council and the applicant.

PCL lawyers can help you to ensure your application is an efficient and smooth process from the beginning to save your time, money, as well as meeting any tight deadlines, thereby minimising unnecessary stress and issues dealing with Council and other consent authorities.

You should get legal advice if you are considering all of the above situations because to avoid any potential delays or dilemmas in the DA outcome which can be, from time to time, very daunting to challenge and may involve many stages that can negatively impact your commercial objectives, especially if you are private developers, builders dealing with financiers and contractors.

Below is an outline of the development consent and appeal process including the timelines that you need to be aware of for your appeal process when it comes to residential developments such as homes, units and senior housing.

What is Class 1 Development Appeal (Residential) and how can you make an appeal if you are not satisfied with the notice of the determination issued by a local council/consent authority)?

An applicant can appeal against a council’s decision on the Development Assessment (DA) under Class 1 Division at the Land and Environment Court.

There are four situations where an applicant can appeal to the Court when:

• the application is refused;
• the conditions of consent are disputed between the parties;
• the condition of a concurrent approval is not granted by another government department/agency; or
• the application is not determined within 40 business days from the date it was lodged with the council/consent authority.

A development appeal to the Court must be made within 6 months after the applicant received a notice of the determination or the date on which the application is deemed to have been refused, and there has been no determination from the council/consent authority after 40 business days has passed from the date of the DA lodgement.

It is also important to note that a development appeal for ordinary development such as residential must be lodged within 40 business days while the longer periods are applied for designated development or integrated development (90 business days) and State Significant Development (SSD) (90 business days).

Objector appeal refers to an appeal lodged by an objector about a council and/or consent authority’s determination to grant consent to a development application for designated development which is highly likely to have a significant impact on the environment, such as Class 1 aquaculture development, or mining, or abattoir.

An objector appeal can be made to the Court when an application to modify development consents has been made to a consent authority when development requiring concurrent approvals from another government department or agency such as NSW Department of Transport, or Department of Liquor & Gaming NSW.

It is important to note that an objector must made a submission to object to the development application during the submission period (30 business days). Any member of the public, peak bodies, or affected residents can be objector.

In summary, for those who are considering about DA lodgement preliminary advice and DA appeal, applicant must also make sure to pay the councils’ DA lodgement fees first, and then applicant should have submitted any requested and/or relevant documents (including expert reports) to Council and must keep copies of those records ready before your DA appeal is lodged with the Court to avoid any potential delays in the appeal process. Our Town Planning Lawyers at PCL Lawyers can assist individuals and private developers for any DA lodgement advice, and strategic DA appeal process advice with better legal clarity and transparency to achieve their business objectives in the increasingly complex urban and regional planning sector.

PCL lawyers provide you a clear and concise legal advice to save your time, money, and above all, a personal understanding of your commercial objectives as a strategic advisor to your planning projects. Our lawyers give advice in a timely manner when the time is of the essence dealing with Councils and relevant consent authorities. We understand your needs and pain points at every stage of the application process.

PCL Lawyers can give tailored legal advice in the following areas for your development assessment (DA) application:

• Pre-lodgement advice and/or Lodgement advice;
• Development Application ass stage advice;
• Determination advice or DA appeal advice if it has been rejected by Council;
• After determination advice for Construction Certificate (i.e. approval to start building your home/unit)
• Occupation Certificate (OC) advice (final stage of approval for your newly built home/unit).

PCL lawyers can assist individual home builder, private developers and builders who will be impacted negatively and financially by the DA outcome which is not favourable to their desired outcomes. Those who are in need of the legal advice to amend their DA application and/or to appeal the DA outcome from Council can be a challenging and time-consuming process if you do not know where and how to start properly.

PCL lawyers can guide you along the way of the so-called ‘Assessment Pathway’ which can be a daunting process procedurally, legally, and emotionally especially individual home builders and private developers.