By Anthony Whealy, Partner, Emma Whitney, Special Counsel and Anthony Russell-Thomas, Paralegal

The Planning and Environment team has recently received a number of requests regarding when a development application or modification application is officially ‘lodged’ and can be appealed to the Land and Environment Court of NSW (‘Court’) if a consent authority fails to make a determination in a timely manner.

This article is designed to clear up any confusion on when deemed refusal rights arise for development applications and modification applications and the events which will impact those rights.

Types of refusal

Under the Environment Planning and Assessment Act 1979 (‘EP&A Act’) there are two types of refusals for development applications. The first being a ‘deemed’ refusal which is discussed extensively below.

The second being an ‘actual’ refusal which is when the consent authority makes a determination to refuse the application.

In both circumstances, the applicant or owner of the land has 6 months from the date of refusal (or deemed refusal) to file and commence proceedings in the Court to appeal the determination of the consent authority.

The Assessment Period

The Environmental Planning and Assessment Regulations 2021 (‘EP&A Regs’) states that a consent authority is taken to refuse development consent if it has not determined the development application within the assessment period.[1] This does not prevent the consent authority from continuing to assess and approve or refuse the DA, but it does trigger the applicant’s rights to commence an appeal to the Court. The assessment period differs depending on the type of development application.

The assessment periods are:

• 60 days for a development application for:
  • Designated development.
  • Integrated development, other than integrated development that is Class 1 aquaculture development.
  • Development requiring concurrence i.e. an approval from an authority such as Transport for NSW; and
  • An application that proposes to reduce the number of biodiversity credits.
• 90 days for a development application for State Significant development; and
• 40 days or all other development applications.[2]

The assessment period for development applications concerning designated, nominated, threatened species and State significant development will be extended by the number of days which the minimum public exhibition period is exceeded.[3]

In this context, days are ordinary days – not business days and public holidays are not excluded. However, if the last day of the assessment period falls on a weekend or public holiday, the development application is taken to be refused on the next business day.[4]

When is a development application lodged?

The assessment period commences on the day which the development application is ‘lodged’.[5] Clause 24(3) of the EP&A Regs provides that a development application is lodged either:

• on the day on which the fees payable for the application are paid; or
• if no fee is required, the date that the application is lodged on the NSW Planning Portal.

Clause 39(1) of the EP&A Regs mandates that a consent authority must act within 14 days of receiving a development application by either rejecting it if it is incomplete or issuing an invoice for processing fees if it is complete.

It has been our recent experience that consent authorities will sometimes not reject a development application if they consider it ‘incomplete’ but nor will they issue an invoice so that the development application is ‘lodged’ within 14 days of uploading the documents and plans to the NSW Planning Portal. This conduct is technically unlawful, and eaves the applicant in a state of limbo where the DA is not lodged, appeal rights cannot accrue, and yet the DA has not been ‘rejected’ either.

In the event that the consent authority does not issue an invoice for the respective lodgement fee within 14 days (assuming a fee is applicable), an applicant can commence Class 4 proceedings in the Land and Environment Court seeking an order in the nature of ‘mandamus’, to compel the consent authority to issue an invoice for the lodgement fee. Indeed, we recently acted in proceedings where the Court of Appeal confirmed that an applicant has every right to take such action if an invoice is not issued within 14 days.

Of course, we suggest writing to the relevant Council first, warning that such action would be taken. We now regularly prepare such letters, and are available to assist our clients with this process when required.

Stopping the clock

A consent authority may request additional information in relation to a development application at any time. If they request this information within 25 days of the application being lodged under the approved form then the ‘clock’ on the assessment period is paused until the information is provided.[6] Alternatively, if the developer advises that the information will not be provided, the ‘clock’ is automatically restarted, so that no time is lost.

For example, if a development application was lodged on 1 July 2024, and the invoice was paid on that day, and a request for additional information was made on 20 July 2024, the assessment period would be paused from 20 July 2024. If the additional information was provided on 5 August 2024, the clock starts again on that day.

This means that in that example, the days between 20 July 2024 and 5 August 2024 are not counted in the assessment period. So, the 16 days when the clock was stopped are excluded from the total assessment period when calculating deemed refusal rights.

Be aware that councils often issue what they describe as ‘stop the clock’ requests after the allowed 25 days. These requests are in fact out of time and of no effect. We often need to point this out to councils when they claim (wrongly) to have paused an assessment period, but are in fact out of time to do so.

We are regularly engaged to advise and assist in the circumstances outlined above.

Resetting the clock

When an amendment to a development application is accepted by the consent authority, and the consent authority does not consider it to be minor[7] the assessment period will be reset, meaning the timeline for determining the application starts anew. This resetting of the clock is contingent upon the nature of the amendment:

• Minor Amendments: If the consent authority considers the amendment to be minor, the original assessment period continues without interruption.

• Not Minor Amendments: If the consent authority deems the amendment not minor, the development application is taken to be lodged on the day the amendment was made. This resetting of the assessment period acknowledges that substantial changes require a fresh evaluation, similar to a new application, to ensure all relevant factors are considered.

We have formulated a two-fold test for the purposes of determining whether an amendment will reset the ‘clock’.

Step 1 – What is an amendment?

The first fold is to determine whether the amendment being proposed is actually an amendment.

The case of Consulting Architects Pty Ltd v Liverpool City Council [2017] NSWLEC 129 (‘Consulting Architects’) confirms what an ‘amendment’ is for the purposes of resetting the ‘clock’. In that case Molesworth AJ confirms that to have the effect of restarting the assessment period, the DA must be amended by following the process outlined in Clause 55 of the old Regulations, which is now clauses 37 & 38 of the EP&A Regs.

Consulting Architects also confirms that any communications between Council and an applicant that merely ‘test the water’ in the approval process are not sufficient to restart the deemed refusal appeal ‘clock’.

To constitute a valid amendment capable of resetting the ‘clock’, the amendment must:

• Put forward a crystallised change to the DA to replace the previous DA;
• Be agreed to by the Council, preferably in writing; and
• The application to amend or vary the DA must contain sufficient particulars to indicate the nature of the amendments.

Molesworth AJ confirms that the amendment must be identifiable as a ‘settled’ amendment; that is a crystallised change that an applicant has adopted and now puts forward to replace that which went before. The amended application needs to demonstrate sufficient maturity to become settled components to a revised composite proposed development.

Put simply, an amendment that can reset the ‘clock’ must be a finalised, agreed-upon change that replaces the original development application with a clearly defined proposal.

Step 2 – Is it minor or not?

The second fold of the test is to determine whether the amendment is minor? If it is, the amendment will not reset the ‘clock’.

The EP&A Act and the EP&A Regs do not provide a definition of the word “minor”. The Court also has not expressly defined the meaning of ‘minor’ for the purposes of the EP&A Regs, however it has looked at the meaning of ‘minor’ for the purposes of an application for costs thrown away which we consider to be similar.

This point is discussed at length in Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45 where Pepper J helpfully summarises the following principles in determining what is a ‘minor’ amendment.

• what is minor is a question of fact and degree;
• regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development;
• where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor;
• merely because the amendments do not involve a change in concept does not mean that they are not minor;
• merely because the amendments do not raise an entirely new issue does not mean that they are not minor;
• merely because the amendments are responsive to issues raised by the consent authority or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor;
• whether the amendments require re-notification is irrelevant; and
• an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative.[8]

Put succinctly in order for to determine whether amendments are a minor amendment, the consent authority must have regard to the degree of the changes made and their overall effect.

Pepper J does not articulate with any degree of precision the meaning of ‘minor’ however she neatly summarises at [44] that the amendments contained in the amended plans clearly contemplate a change to the development application that is more than “minor” or, more than “mere detail”.

Example

If an applicant submits an amendment which is not minor on 1 July 2024, and the consent authority accepts it, the assessment period would restart from that date, effectively providing a new timeline for the consent authority to determine the application.

Conclusion

Navigating the intricacies of deemed refusal rights under the EP&A Act and the EP&A Regs can be complex. Applicants must be vigilant about the statutory deadlines and the specific circumstances that can pause or reset the assessment period. Awareness of these factors ensures that applicants can appeal in the statutory timeframes to the Land and Environment Court of NSW if necessary, or make strategic decisions, for example to formally amend a DA so as to re-enliven appeal rights that had otherwise expired.

Need further assistance?

For those needing further assistance or clarity on the appeal process or any aspect of development applications, our Planning and Environment team at Mills Oakley is here to help. We are experienced in advocating and advising developers and property owners and can provide expert guidance to navigate any challenges with local councils. Please reach out to Anthony Whealy or Emma Whitney for assistance.

[1] Environmental Planning and Assessment Regulations 2021 cl 91 (‘EPA Regs’)

[2] EPA Regs cl 91.

[3] EPA Regs cl 93.

[4] Interpretation Act 1987 (NSW) s 36.

[5] EPA Regs cl 92

[6] EPA Regs cl 94

[7] EPA Reg cl 38(2)(a)

[8] Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45; Cachia v Manly Council (No 2) [2009] NSWLEC 1107; Groeneveld v Wollongong City Council [2009] NSWLEC 149; Groeneveld v Wollongong City Council [2009] NSWLEC 1226