A refusal notice feels final. Often it is not. In NSW an applicant whose development application has been refused has two main options: ask council to review its decision, or appeal to the Land and Environment Court. Choosing well, and quickly, can save months.
Start with the reasons, not the outcome
Every refusal comes with reasons, and most are supported by an assessment report. Read both closely. Reasons usually fall into three groups:
- Information gaps. Council could not be satisfied because something was missing or unclear.
- Design issues. Height, bulk, setbacks, privacy or heritage impacts that could be resolved with amended plans.
- Fundamental issues. The use is not permissible, or the proposal conflicts with a core objective of the controls.
The first two groups are often fixable. The third usually means rethinking the proposal rather than arguing harder.
What a section 8.2 review is
Division 8.2 of the Environmental Planning and Assessment Act 1979 allows an applicant to ask council to review its determination. The review is carried out by a different person or body to the one who made the original decision, and council can consider amended plans, provided the development remains substantially the same as the original application.
A review is usually faster and cheaper than an appeal, and it keeps the conversation with council open. It works best where the issues are information gaps or design matters that amended plans can address.
When an appeal makes more sense
An appeal to the Land and Environment Court is a fresh hearing of the merits. A commissioner of the Court stands in the shoes of the consent authority and decides the application again. Most appeals start with a conciliation conference under section 34 of the Land and Environment Court Act 1979, where the parties try to reach agreement, often on amended plans.
An appeal may be the better route where there is a genuine disagreement about how the controls should be applied, where council has not decided the application in time (a deemed refusal), or where a review has already been tried.
Watch the clock. Strict time limits apply to both reviews and appeals, and they generally run from the date you were notified of the determination. Get advice as soon as the refusal arrives.
A practical way to decide
- List each reason for refusal and mark it as information, design or fundamental.
- Ask whether amended plans could resolve the design reasons without changing the essence of the proposal.
- Consider your timeframe, budget and appetite for a formal process.
- Check the deadlines for each option before deciding.
Sometimes the best answer is neither: a new, better resolved application can be the fastest path to an approval.
How we help
Having written assessment reports at the City of Sydney and worked on Land and Environment Court matters, Ethan reads a refusal the way council wrote it. We review the determination, advise on the best pathway and prepare the review or planning case, working with your lawyers where the matter goes to Court.
This article is general information only and is not legal advice. Your circumstances will differ, so please get advice on your specific matter.