What has happened?
The appeal period for an actual or deemed refusal of an application for development consent has reverted from 12 months back to 6 months following the expiry, on 25 March 2022, of the “prescribed period” introduced by the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (COVID Act).
Context
In response to the pandemic, the COVID Act inserted provisions into the Environmental Planning and Assessment Act 1979 (EP&A Act) allowing applicants an extra 6 months to appeal development application (DA) determinations which occurred during the prescribed period (25 March 2020 to 25 March 2022).
Lapsing of appeal periods
Once a development application (DA) has been lodged, a consent authority has a prescribed amount of time to determine that application. The time allowed will range from between 40 to 90 days, depending on the category of development for which consent is being sought. For most local developments, the prescribed assessment period will be limited to 40 days.
However, in certain circumstances, the consent authority may also stop, or even reset, the assessment clock. Generally speaking, if a DA has not been determined within the prescribed amount of time after the lodgement date (allowing for any clock stoppages), then it is deemed to have been refused.
Once a DA is deemed to have been refused, an applicant may commence proceedings appealing the deemed refusal within 6 months. As mentioned previously, the emergency provisions which extended the appeal period to 12 months are no longer operative.
Should an applicant fail to commence proceedings within the appeal period, then the entitlement to appeal a deemed refusal is forfeited. The applicant must then wait for the consent authority to provide an actual determination on the application before an appeal can be commenced.
The EP&A Act does not prescribe a specific amount of time within which Council is required to make an actual determination once the appeal period for a deemed refusal has lapsed. This can lead to frustration for an applicant when there are significant delays in Council assessing development applications.
For this reason, it is vital that applicants remain conscious of the 6-month appeal period and ensure that merit review proceedings are commenced in a timely fashion.
Further information
For further information please contact Marcus Steele, Director, on +61 418 243 315 or marcus.steele@bicksteele.com.au.