Embarking on a property development project in New South Wales involves navigating a complex set of regulations and procedures. The development application (DA) process is a critical first step that sets in motion a series of events leading to a final decision. These decisions can vary widely, encompassing full approvals, partial approvals with conditions, or outright rejections.
For developers, local councils, and consent authorities, it’s crucial to understand the range of possible outcomes. But what options are available when faced with unfavourable terms, conditions, or a refusal? While the path forward may seem unclear, there are several avenues to explore.
This article aims to:
- Outline the spectrum of possible development application outcomes
- Discuss the steps to take upon receiving an unfavourable decision
- Explore available appeal options and their processes
- Provide strategies for effectively navigating the appeals process
Whether you’re a seasoned property developer, a council planner, or new to the field, our goal is to offer clarity on the process and your options when faced with a challenging development application result in NSW.
Potential Outcomes of Development Applications in New South Wales
In New South Wales, lodging a development application initiates a process governed by the Environmental Planning and Assessment Regulation 2021. Here’s a concise overview of the possible verdicts:
Approval Outcomes
When the decision favours the developer, “Development Consent” is granted in one of two forms:
- Unconditional Consent: The application is fully approved, allowing the developer to commence without additional requirements from the elected council.
- Conditional Consent: The application is largely approved, but specific conditions must be met before development can fully commence.
Rejection Outcomes
Not all applications are approved. A “refusal” can occur in two ways:
- Explicit Refusal: The reasons for rejection are clearly stated, providing insight into why the proposed development failed to meet necessary criteria or comply with planning controls.
- Deemed Refusal: If the consent authority doesn’t make a decision within the statutory period, it’s considered a de facto rejection.
Deferred Development Consent
This outcome is akin to a yellow traffic light. The local council grants initial approval, but the project can only proceed once certain specified requirements are fulfilled.
Understanding these potential outcomes is crucial for developers and council staff. It enables better preparation and anticipation of various scenarios in the property development process, allowing for more informed decision-making and strategic planning.
Navigating Options After Council Denies Development Consent
If your development application is rejected or the conditions imposed are overly restrictive, it can be disheartening. However, several avenues remain open:
Review of Determination
Consider utilising the Review of Determination process offered by your council. This internal review allows the council to reassess their decision. Remember, you have six months from the date of determination to request a review of determination or write to the council for further guidance. It’s often a more cost-effective and quicker alternative than appealing to the Land and Environment Court, particularly when dealing with minor objections or council notifications.
Land and Environment Court Appeal
The Land and Environment Court provides a significant legal avenue for those dissatisfied with council decisions. The court conducts a comprehensive review of development applications (DAs), considering all stakeholders’ perspectives and any objections raised. While potentially time-consuming and costly, it offers a robust legal recourse.
To facilitate this process:
- Ensure all fees, including the development application fee, are paid.
- Verify that both you and the council have all necessary documents.
- Adhere to all procedural requirements.
- Confirm that plans align with the Class 1 Practice Note of the Land and Environment Court.
- Retain a copy of the council’s notice of determination.
Conciliation with the Council
Conciliation, as outlined in Section 34 of the Environmental Planning and Assessment Act 1979, offers a collaborative approach to dispute resolution, which can include objections from neighbours. This method encourages open dialogue between the applicant and council officers, aiming for a mutually acceptable compromise. A key advantage is its confidentiality; discussions aren’t admissible as evidence in subsequent hearings.
Modifying and Resubmitting Your Application
If you’re open to adjusting your plans, consider a Modification of Consent. This involves making changes to your initial proposal to comply with planning controls and development control plans (DCPs). However, ensure these modifications don’t significantly alter the fundamental nature of your original application. Substantial changes may require lodging a new DA through the NSW Planning Portal.
Conclusion
Navigating the intricacies of property development in New South Wales demands a comprehensive grasp of the development application process. Each phase, from initial lodgment to potential outcomes and subsequent actions, plays a crucial role for developers and councils across NSW. While challenges may arise, particularly when faced with unfavourable council decisions, the available options underscore the importance of flexibility and determination.
By staying informed about planning and assessment regulations, leveraging available resources, and pursuing collaborative solutions, developers can turn obstacles into opportunities for progress. A setback in the development application process, whether through rejection or stringent conditions, often serves as a catalyst for innovation and constructive dialogue rather than an insurmountable barrier.
Property development extends beyond physical structures and blueprints; it requires strategic foresight and a nimble approach. With the right knowledge and tactics, every challenge becomes an opportunity for growth and eventual success.
Remember, expertise in navigating these complex processes can be invaluable. Consider seeking professional legal advice to help you make informed decisions and navigate the intricacies of property development in NSW. With the right support, you can confidently address challenges and pursue your development goals, whether you’re working on a project in the Northern Beaches, Sutherland Shire, or any other region in the state.
