What has happened?
Since 1 July 2026, councils have been under increasing pressure to deal quickly with development applications (DAs) submitted on the NSW Planning Portal (Portal). The Minister's Statement of Expectations Order 2026 expects councils to lodge DAs within an average of 7 days of submission. As part of that, councils are expected to review the adequacy of an application within 4 days and issue an invoice giving the applicant 3 business days to pay.
One result is that more applications are being "returned" at the front door. Applicants are often surprised to learn that a DA uploaded to the Portal has not been lodged at all, and in some cases has been sent back without being assessed.
This article explains when a council can lawfully refuse to accept a DA, and what you can do about it.
Context: submitted is not the same as lodged
Under s 24 of the Environmental Planning and Assessment Regulation 2021 (Regulation), a DA must be in the approved form, contain all the information and documents required, and be submitted on the Portal. However, a DA is only lodged:
on the day the fees for the application are paid; or
if the applicant is told that no fee is required, on the day the application was submitted on the Portal.
The council must determine the fee within 14 days after the application is submitted (s 256(2)). If a notified fee is not paid, the council may refuse to consider the application (s 256(5)).
The distinction matters. In Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264, the Court of Appeal held that a DA is not "made" until it is lodged, and it is not lodged until the fee is paid. As a result, the applicant lost the benefit of a savings provision and its DA was assessed under the new Housing SEPP. The lodgement date also starts the clock for a deemed refusal appeal.
When can a council reject a DA?
The power to reject a DA is in s 39(1) of the Regulation. A consent authority may reject a DA within 14 days after receiving it, but only if:
the application is illegible or unclear about the development consent sought;
the application does not contain the information and documents required by the approved form, or by the Environmental Planning and Assessment Act 1979 (Act) or the Regulation;
for State significant development, the Planning Secretary considers the application incomplete, for reasons given by written notice;
for integrated development, the application does not identify all of the approvals required before the development can be carried out;
the application is required to be accompanied by a biodiversity development assessment report and is not; or
the application is required to be accompanied by a species impact statement under the Fisheries Management Act 1994 and is not.
These are completeness grounds, not merit grounds. A council cannot reject a DA at the front door because it thinks the proposal is too big, conflicts with its DCP, or is likely to be refused. Those are matters for assessment after lodgement.
A missing document required by the approved form, such as owner's consent, a BASIX certificate issued within the previous 3 months, or a list of the concurrences and approvals required, can justify rejection. In Johnson Property Group Pty Limited v Lake Macquarie City Council (No 2) [2020] NSWLEC 42, the Court accepted that a DA could be rejected for want of owner's consent under the equivalent provision of the former Regulation.
What about "returning" an application on the Portal?
The Portal allows a council, after its pre-lodgement review, either to lodge the application or to "return" it with reasons. A returned application is closed, and if the applicant resubmits it, it is given a new Planning Portal application number.
The Regulation does not use the word "return". In our view, returning a submitted DA without lodging it is, in substance, a rejection. It should therefore be justified by one of the s 39 grounds and occur within the 14-day period. A return based on merit concerns, or long after the application was submitted, may be open to challenge.
What happens when a DA is rejected?
The council must immediately notify the applicant of the reasons for the rejection through the Portal (s 39(3)).
The council must refund the whole of any fee paid (s 254(1)).
Unless the decision is changed on review, the DA is taken never to have been made (s 39(2)). This can matter if planning controls change in the meantime, as savings provisions usually depend on when an application was made.
Can you challenge a rejection?
Review. A council's decision to reject and not determine a DA can be reviewed under s 8.2(1)(c) of the Act. The request must be made on the Portal within 14 days after you are notified of the rejection (s 244(2)(b) of the Regulation). If the council does not determine the review within 14 days, it is taken to have refused it (s 247). If the rejection is overturned, the DA is taken to have been lodged on the date of the review decision (s 8.5(3) of the Act).
No merit appeal. In Johnson Property Group, Justice Duggan held that a rejection is a "decision", not a "determination", of a DA. There is therefore no right to a Class 1 merit appeal to the Land and Environment Court against a rejection, even after a review.
Judicial review. A rejection that is not authorised by s 39, for example because it is based on merit or made outside the 14-day period, may be challenged in Class 4 judicial review proceedings. A council that fails to determine and notify the fee may also be compelled to do so. In Hinkler Ave, the Court of Appeal noted that an order in the nature of mandamus may be available.
How will this affect you?
Treat the approved form as a checklist. Make sure owner's consent, BASIX, any BDAR, the list of concurrences and approvals, and all required plans and reports are uploaded before you submit.
Watch for the invoice and pay it immediately. Some councils allow only 2 or 3 business days, and unpaid applications may be cancelled.
Keep a record of when you submitted, any requests for information, and when you were invoiced and paid. These dates can determine which controls apply and when you can appeal against a deemed refusal.
If your DA is rejected or returned, read the reasons carefully. If they are not grounded in s 39, consider seeking a review within 14 days, or legal advice about judicial review.
Where planning controls are about to change, allow time for the council's pre-lodgement review. Submitting on the Portal on the last day may not be enough.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.