Enlivening appeal rights to a deemed refusal

On 8 February 2017, Justice Sheahan of the Land and Environment Court handed down his decision in the case of Lateral Estate Pty Ltd v The Council of the City of Sydney [2017] NSWLEC6 concerned with the acceptance of amended plans to a development application when the statutory right to appeal on a deemed refusal had lapsed.

This case involved a deemed refusal of a development application to redevelop 501-509 and part of 511-515 Botany Road, Zetland, which included sites identified within the Green Square Town Centre (DA). The DA, lodged on 13 November 2014, was with respect to an ‘integrated development’, requiring the consultation by Council with the NSW Office of Water.

The Applicant’s deemed refusal right of appeal commenced 14 January 2015 and expired 14 July 2015. A committee of Council reviewed an assessment report on the DA on 10 August 2015 and the Council resolved that the DA be delegated to the CEO for determination, subject to a number of preconditions. The committee also proposed a set of conditions but at no time did Council issue a ‘stop the clock’ letter.

On 1 March 2016, the Applicant emailed Council with a marked up version of the suggested conditions, with further correspondence on 30 March 2016. Council replied on 13 April 2016 noting that each of the ‘mark ups’ would be considered closer to the time that Council is ready to determine the application. It was by this correspondence that the Applicant contended that its amendment, or request for amendment to the DA, was accepted by Council.

A Class 1 application was subsequently lodged on 11 November 2016, followed by a notice of motion which was filed by Council on 1 December 2016 seeking to have the matter dismissed.

Issues

The Applicant contended that it amended the DA and the appeal was filed within time when measured from the date of that amendment (being 1 March 2016). In the Applicant’s view, the fact that Council entertained its email about the proposed conditions and staging of the development meant that Council had accepted the amendment to the DA.

The Council, on the other hand, argued that the Court lacked the jurisdiction to determine the appeal because the appeal was out of time. It contended that there is a high level of formality required when lodging and amending development applications and the statutory framework did not contemplate that the sending of an email about draft conditions would satisfy that level of formality.  Council further submitted that the level of formality required triggers an appropriately formal or technical response by the Council, of its lodgment as a DA in ‘final form’. In this case, Council stated that no steps were taken to assess the Applicant’s comments in relation to the proposed conditions of consent, nor were they referred to the relevant approval body (NSW Office of Water).  Council, it was submitted, never considered the correspondence to amount to an amendment to the DA and no consideration was given in relation to the requirement to re-notify or re-advertise the DA.

The decision

The Court agreed with Council and dismissed the appeal on the basis that there was no amendment to the DA, and the Class 1 appeal was therefore out of time.

The Court accepted the Council’s proposition that the statutory regime establishes clearly defined time limits and it would be completely undermined if an applicant could rely on correspondence with the consent authority in relation to the proposed development to re-start the deemed refusal period, and re-enliven its appeal rights.

The Court concluded that the Applicant did not make it clear in this case that it was seeking to amend the DA, and while a specific form of amendment is not prescribed, it must be sufficiently clear to the consent authority that an amendment is proposed in order for it to be accepted. If such an amendment is accepted by the consent authority, only then will an Applicant’s appeal rights re-enliven.

Concluding remarks

This decision demonstrates that a consent authority (Council) can re-enliven appeal rights that would otherwise be out of time, by acceptance of an amendment to a development application that is a deemed refusal.  There needs to be, however, a level of formality and clear acceptance of the proposed amendment for this to occur.