What Rights of Appeal Do Developers Have When Development Approval Is Refused?

Legislation relating to the management of the environment and land usage is vital for developers in NSW.  When a development application is refused, or conditions have been imposed, understanding the appeals procedure is essential. Here we discuss how development appeals work and the key factors to take into account if you are considering making an appeal.

Where Can You Make an Appeal?

The NSW Land and Environment Court is the specialist court that deals with development, environmental and local government cases.

A developer has the right to appeal to the Court against a development application being denied, or conditions imposed on the development. Consent may be refused due to the developer's failure to advertise a development application in accordance with legal requirements, failure to notify relevant people or provide an Environmental Impact Statement.

Having been established by legislation, the Court can only deal with matters listed within its jurisdiction. Concerning appeals, the Court can, for example, hear appeals under the Environmental Planning and Assessment Act 1979 NSW (refusal of consent for development) or the Protection of the Environment Operations Act 1997 NSW (prosecutions for pollution offences).

Jurisdiction of the Court

The Court's jurisdiction is divided into eight classes, depending on the type of case. Different procedures apply to each class which are as follows:

• Class 1 - includes merit appeals against decisions made concerning development consents and environmental approvals;
• Class 2 - tree disputes, local government and miscellaneous appeals and applications, including disputes under the Trees (Disputes) between Neighbours Act 2006 (NSW) and matters arising under the Local Government Act 1993;
• Class 3 - land tenure, valuation, rating and issues of compensation including Aboriginal land claim matters;
• Class 4 - civil enforcement and judicial review of decisions under environmental and planning laws;
• Class 5 - criminal proceedings for offences against environmental or planning laws;
• Class 6 - appeals from convictions relating to environmental offences by local courts (criminal matters);
• Class 7 - other appeals relating to environmental offences;
• Class 8 - mining matters arising, for example, under the Mining Act 1992.

Both Judges and Commissioners hear cases. A Judge or Commissioner can hear Class 1, 2, 3 and 8 matters.  However, only a Judge can hear Class 4, 5, 6 and 7 matters.

What is the Key Legislation of the Appeals Process?

The Protection of the Environment Operations Act

The Protection of the Environment Operations Act is the key piece of environment protection legislation. It is administered by the NSW Environment Protection Authority. The Authority is the primary environmental regulator, to manage and reduce pollution, waste and other adverse impacts on the environment and human health.

Environmental and Planning Assessment Act

The primary legislation governing the use of land is the Environmental and Planning Assessment Act. This Act is administered by the NSW Department of Planning. The Act sanctions two types of environmental planning:

• Local Environmental Plans (LEPs) are environmental planning instruments applicable to either the whole or part of a local government area;
• State Environment Planning Policies (SEPPs) are environmental planning instruments addressing planning issues within the State.

 Both LEPs and SEPPs are referred to as Environmental Planning Instruments.

A Developer’s Right to Appeal

A developer can appeal either in the form of a merit appeal or a judicial review. The type of appeal will depend on the category of the development.

1. Merit review

Merit appeals are available under environmental legislation. Most appeals are made by developers, against a refusal to grant development consent or the conditions of the consent. In some cases, a person who objects to consent being given is also entitled to bring a merit appeal.

Usually a merit appeal is heard by a Commissioner rather than a Judge. If proceedings are lengthy, the matter is heard either by two or more Commissioners or a Judge and a Commissioner sitting together.

The presiding Judge or Commissioner can take into consideration all the material submitted in the first instance and can consider any new relevant evidence. Procedures are usually informal, and the formal rules of evidence do not apply.

Having considered all available evidence, the Court can make any decision that the original decision-maker could have made. It can uphold the original decision or overturn it.  If approval is granted for the development application, the Court may impose conditions to the consent.

Procedurally, merit appeals, regarding development applications, usually commence on-site and may involve local residents. The Court must make a site inspection at some stage unless all parties agree it is unnecessary.

2. Judicial Review

 If a developer is dissatisfied with the decision of a Commissioner, an appeal can be made to a Judge of the Land and Environment Court. The Court is not concerned with the merits of the proposal and whether the decision was a good one. It is only concerned whether the decision was made in accordance with the law.  For the review, new evidence to support the merits of the development proposal cannot be introduced.

Further Appeals

When a Commissioner has made the decision, an appeal can be made to a Judge. If decided by a Judge, the decision would have to be appealed to the NSW Court of Appeal. The basis of the appeal would be that an error was made in the application of the law and in coming to a decision.

Time Limits for Appeals

If a developer wishes to take action to challenge a decision regarding a development application, it is important to act quickly.  Most environmental laws, including merit appeals and judicial review proceedings, hold strict time limits for commencing a case in the Land and Environment Court. The time limits differ depending on who is bringing the appeal and under what legislation the decision was made.

Contact our Land and Environment Court Solicitors, Sydney NSW

Szabo & Associates Solicitors are experienced practitioners in property development and planning disputes. We can advise you on all issues relating to Land and Environment law. Please call us on (02) 9158 6333 or fill in our online contact form.