The New South Wales Land and Environment Court (Court) has recently considered the preservation of appeal rights following a request for review under section 82A of the Environmental Planning and Assessment Act 1979 (EPA Act) made too late for the relevant Council to determine the application within the statutory review period of 6 months.

FACTS

On 18 May 2012, Ku-ring-gai Council (Council) refused consent for a development application for the construction of 8 villa units for seniors in Turramurra. The Notice of Determination was issued on 23 May 2012, following which the applicant lodged a request for review under section 82A of the EPA Act on 13 November 2012 (Review Request). By letter dated 29 November 2012, Council rejected the Review Request on the basis that:

"section 97 provides that an application's determination may be appealed within 6 months of the date on which the applicant received notice of determination. Council's determination notice is dated 23 May 2012. Since more than 6 months has elapsed since Council's determination, Council can no longer proceed with the review determination, as insufficient time has been provided to Council to enable it to assess the review, particularly when the statutory notification period required for the review exceeded the time available to assess the application."

On 20 December 2012 the applicant filed an appeal in the Land & Environment Court against the Council's decision of 29 November 2012 to reject the Review Request.

APPEAL OUT OF TIME

In holding that the applicant had not commenced its appeal within the time allowed by section 97(1) of the EPA Act, the Court clarified two issues:

  • The Court rejected the applicant's submission that the reference to 'determination' in section 97(1) includes the determination of a review separately from the determination of a development application. Accordingly, the 6 month period from which the applicant had to file an appeal did not begin on 29 November 2012, being the date the Council rejected the Review Request, but on the date the development application was refused, namely 18 May 2012.
  • The Court confirmed that even if a request for review is lodged within 6 months of the Notice of Determination, Council cannot conduct a review once that 6 month period has passed. Accordingly, in this case, Council could reject the request for review lodged 10 days before the 6 month period elapsed because the time required to assess the review, including the required statutory notification period, would compel Council to review the determination after the 6 month period had expired. The Court held that the "statutory scheme does not support an inferential finding that lodging a request for a review alone preserves an appeal right under s 97(1)".

IMPLICATIONS

This decision confirms that applicants wishing to preserve their appeal rights must comply with the 6 month period stipulated in s97(1) of the EPA Act for filing a Class 1 appeal, where a request for review is undetermined at the expiration of that period. Applicants should pay particular attention to the minimum public notification and receipt of public submissions period applicable to the review to ensure that Council has sufficient time to conduct a review, before the 6 month period expires.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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