Before making an application to the Court for appeal, discuss it with us first – sometimes you are better off seeking a review of determination with amended plans or lodging an application to amend development consent. This is often a better approach than an appeal to the Court, particularly if your issues relate to conditions of consent.
Who should I talk to?
You should contact the officer who determined the application or issued the order. Their contact name and details are provided on the Notice of Determination or order. In relation to development appeals, the officer will normally be one of our Development Assessment Team Leaders.
Our Team Leader Building and Compliance is normally the relevant officer to speak to if the appeal relates to a Construction Certificate application, Complying Development Certificate application, a Building Certificate application or an Order.
My application has not been determined, can I appeal?
Yes. This is called a deemed refusal appeal and depending on the type of application, you may appeal to the Land and Environment Court after either 40 or 60 days of the application date, on the basis that the application is deemed to have been refused.
What happens if I appeal on the basis of a deemed refusal?
Council is not prevented from continuing to determine the application.
Should you lodge a deemed refusal appeal with the Court, the Court is required to assess the application having regard to the same planning rules as Council. In addition, the Court must follow their own rules. The Court will follow previous case law and take guidance from its own published planning principles.
Council can continue to determine an application that is the subject of an appeal to the Court. Should Council grant consent we are entitled to have the appeal withdrawn (with the consent of the applicant) at any time prior to the determination of the appeal.
How can I mimimise appeal costs?
In simple matters we will generally agree to what is called a s.34 conference. This is where the Land and Environment Court is given undertakings from the applicant and Council to be bound by the Commissioner's decision. The s.34 conference is normally held at the subject site so that the applicant and neighbours can normally address their concerns to the Commissioner. Council's Assessment Officer will set out the Council's position. The Commissioner will normally make a decision on the spot and then publish the decision in writing.
In more complex matters it may be necessary to proceed to a full hearing. Where Council's officer recommended refusal and is able to, our officer will give professional/technical evidence. Where applications are refused by our Application Assessment Panel or the Woollahra Local Planning Panel contrary to a staff recommendation, our officers do not give evidence. In these cases we will talk with the appellant so that we can reach agreement on the appointment of any necessary Court Appointed Expert. The Court will make the final decision as to who is appointed to provide expert evidence.
The most complex appeals
In the most complex appeals it may be the case that the applicant or Council will seek leave from the Court to put up their own evidence, through experts they brief individually.
Can objectors appeal or join appeals?
Sometimes, neighbours will seek leave from the Court to be joined in proceedings. In some cases neighbours have sought and have been granted leave from the Court to put before the court their own expert evidence.
Our general approach, where neighbours seek to be joined, is to neither support nor oppose such requests. It is not our place to do so. Whether or not neighbours should be allowed to do so is a matter for the Court to determine. Our position is that neighbours, more often than not, add value to the process. In some cases the Court may determine that nothing is added by formally joining neighbours in proceedings as long as they are heard.
If a neighbour is unhappy with our determination, in NSW there are very limited merit appeal rights under section 8.8 of the Environmental Planning and Assessment Act 1979. These third party appeal rights only apply to "designated development."
If you consider that there has been a breach of law in the granting of a consent, or otherwise in the administration of the Environmental Planning and Assessment Act 1979 you may bring proceedings before the Court under section 9.45 of the Act. We strongly advise that you take legal advice before commencing such action.
Where can I get further information?
The Land and Environment Court's Self Help page is a great place to start.
We recommend you get legal advice from a lawyer or barrister who has expertise in the Land and Environment Court. You can start looking for such lawyers or barristers through:
- The Law Society of NSW, but you may wish to limit your online search to a lawyer who is an accredited specialist of "Local Government and Planning Law"
- The NSW Bar Association, but you may wish to limit your online search to a barrister within the area of practice of "Environment and Planning"
- The Environment and Planning Law Association - you will need to contact them and ask for a list of lawyers and barristers who are members.
We cannot recommend any particular lawyer or barrister. You should choose your lawyer or barrister carefully since significant legal costs are easily accrued. A good way to review the performance of lawyers and barristers is to look at judgements. You can search the NSW Case Law database by any keyword.