Council hasn’t approved my DA
For seasoned developers wondering what do if, or when, an impasse is reached with the local council in the assessment of their development application (“DA”), this is unlikely to be a new experience or question. They are usually well aware of their options. Often, due to time constraints, some developers take the view that appealing to the Land & Environment Court (“L&E Court”) is the answer, as it will give them an outcome sooner rather than later.
A one-off applicant for a new home, or alternations and additions to a home (a non-professional developer or home renovator), may find the whole DA process quite complex. It can be hard not to take what may seem like a significant setback personally. The prospect of appealing to court against a local council is not something most people jump into with open arms – but in some cases, and for some people, it is the best option.
Although it may seem surprising, there is no law requiring councils to make a decision on a DA within a timeframe, or at all. Councils are able to invite the applicant to withdraw their DA or leave a DA without a decision one way or the other, which can be frustrating for applicants.
A refusal, either directly or a “deemed” refusal (when a DA remains undecided within a specified time after lodgement), by a local council can have quite significant impacts on a home owner or developer.
If the DA has been refused or not progressed, or any concerns aren’t able to be resolved to a point where the development consent will issue, a home owner or developer may have to decide whether to appeal their DA to try to obtain approval from the L&E Court.
What can you do if your DA hasn’t been approved?
Step 1: Consider your DA and listen to the council and your consultants
Try to look at your DA with fresh eyes and consider any feedback the council has given you about your DA. If the council hasn’t given you any feedback, then arrange a meeting with the appointed town planner at the council and find out what concerns exist.
Consider any advice from your architect and consultants on any changes they believe could improve your prospects of obtaining development consent from the council without compromising your development to a point where it is no longer viable for you. This could mean addressing any non-compliances or reducing the effects of any non-compliances.
Consider to what extent you are able to address any valid concerns from neighbours. Sometimes communicating with your neighbours to explain the proposal in more detail may be enough.
Step 2: After the above, you will have a good idea on whether you need to amend your plans/proposal or not
At the very least, giving consideration to amending plans or your proposal at this point may help to address some of the issues so resources can be focussed on any remaining concerns. Time and effort spent at this stage is usually well spent and will save time and money later.
Going through this process before any L&E Court appeal will save time and money in any L&E Court case appealing the DA. Resolving issues before going to the L&E Court will save on expert fees and legal costs and probably result in a quicker decision.
Step 3: L& E Court and/or something else?
Where the council has refused a DA, or approved the DA with conditions that aren’t acceptable, you should consider what alternatives exist to commencing an appeal to the L&E Court.
In the majority of DAs it is usually possible to lodge an application for a review before, or at the same time as, an appeal to the L&E Court. A section 82A review application can give a development applicant and the council a chance to communicate and address issues with each other in a relatively cost effective way. It gives the council a chance to re-consider the DA, and the relevant Act requires that the council appoint an equal or more senior council officer to carry out the review (s82A of the Environmental Planning & Assessment Act, 1979 NSW (“the Act”)).
A refused application to modify an existing development consent (also known as a section 96 application) can also be reviewed under s96A of the Act.
The application costs of review applications are relatively low compared to a new DA or L&E Court proceedings and the odds of success can be quite good. According to the Local Development Performance Monitoring Report 2014-2015, 70% of section 82A reviews were approved by councils (see this and the latest reports from the Department of Planning & Infrastructure at http://www.datareporting.planning.nsw.gov.au/)
It is technically possible to end up with a “worse” consent after the review, however if you have an unworkable consent then this may not be a real risk. It may even be possible to amend the DA plans or proposal as part of a section 82A review application, subject to the amended plans being substantially the same as those originally assessed.
Want to go to Court?
If you are considering appeal options to the L&E Court then you will probably want to proceed with the best DA possible. There are limited opportunities to amend once an appeal to the L&E Court is commenced and it is usually more expensive to amend after an appeal has been lodged than before.
If you are interested in appeal options beyond the relevant council, then please read another summary paper we have prepared “Appealing to the Land & Environment Court” … or arrange a meeting with us to talk about your DA and your options.
There are time limits for lodging s82A review applications, s96AB review applications and commencing L&E Court proceedings. These time limits are strict and it is recommended that advice is sought on the time limits that apply, so that any review or appeal rights are not lost.
Surry Partners Lawyers can help by advising you through the DA process and available options as well as acting as your legal representatives in L&E Court proceedings in a practical, cost effective way.
Please contact Mario Prodromou at Surry Partner Lawyers on (02) 9318 6414 for advice and action on planning, Council and the Land & Environment Court matters.
This paper is a summary providing general information and is not specific legal advice. Each development application is different and in different circumstances which require individual assessment before legal advice may be provided.
(02) 9318 6414
Surry Partners Lawyers