These days, development appeals and disputes to construction are as common as avocado on toast. And, if you have ever had to lodge an appeal, you’ll understand how difficult it is to navigate the Land and Environment Court. Learn simple and effective strategies as Sheena Vinden, Senior Partner shares her insights on how to craft a successful development appeal.
When it comes to construction and development these days, disputes are as common as smashed avocado breakfasts. Although the New South Wales real estate market is starting to slow down, building developments and constructions are still taking place across the state, and Sydney in particular. As a consequence, the amount of development appeals received by the Land and Environment Court is large. And, if you want your development appeal to be successful, it’s crucial to craft it carefully.
What is a development appeal?
If the progress of your development application (DA) has been denied, you may wish to appeal this with the Land and Environment Court. This setback may have occurred for a number of reasons ranging from an explicit refusal, to unviable consent due to adverse conditions, to excessive requests for more detailed reports.
In Australia, the Land and Environment Court has the authority to hear and finalise proceedings under:
- s 8.7 of the Environmental Planning and Assessment Act 1979 (the Planning Act) in relation to development applications and
- s 8.9 of the Planning Act in relation to applications to modify a development consent for different kinds of development.
A development appeal is an application in Class 1 that occurs under these sections of the Planning Act.
Who can make a development appeal?
According to the Land and Environment Court, development appeals may be made by any persons who meet the following requirements:
- an applicant for a DA or an application to modify a development consent for development;
- dissatisfied with the determination of a consent authority with respect to the applicant’s DA or modification application (MA) under ss 8.2, 8.3, 8.5 or s 8.9 of the Planning Act
Whether you are a developer or individual, if you want your appeal to be successful, it is important that you take the time to familiarise yourself with the process and proceedings in order to put forward the best DA possible.
Check all appeal information
Ensure you are lodging the right appeal. As per the Land and Environment Court:
A development appeal under s 8.7 or s 8.9 and an objector appeal under s 8.8 of the Planning Act are allocated to Class 1 of the Court’s jurisdiction (by s 17(d) of the Land and Environment Court Act). Either appeal is to be commenced by a Class 1 Application (Form B (version 2).
Furthermore, time frames for lodging and reviewing applications, and commencing court proceedings may vary depending on your particular appeal. For example, a development appeal under s97 or s97AA should be made within six months of:
- the date on which the applicant received notice of the determination of the application or review, or
- the date on which that application is taken to have been determined.
Lodging your development appeal
When assessing the prospects of a Class 1 appeal, the Court will consider the following:
- level of compliance with planning instruments and policies and impact of non-compliance;
- surrounding built environment and impact of the proposed DA on that environment;
- whether sufficient information has been provided;
- substance of any objections received.
As such, when submitting your appeal, you will need to attach a number of documents to support your case. This includes:
- The DA or MA;
- Any documents which accompanied that application (including environmental impact statement);
- Any plans for the development accompanying the; application as per Schedule A of the Practice Note – Class 1 Development Appeals;
- Any determination by the consent authority of the DA or MA.
Requirements and inclusions
When submitting your plans, the Land and Environment Court has an extensive list of required inclusions, all of which are covered in the Practice Note (a formal document which explains the process and requirements for development appeals). For example, something as seemingly simple as floor plans must still include:
- Room names, area and dimensions;
- The location of windows and doors;
- The levels of floors, terraces and the like to Australian Height Datum (AHD);
- Wall construction; and
- Spot levels of natural ground to AHD.
It is important that you take the time to check your DA before filing your appeal as there will be limited opportunities to amend them once proceedings have commenced in Court.
Lodging a development appeal to the Land and Environment Court can be a complicated process, so it’s best to enlist the help of an experienced lawyer to navigate. Contact the team at AV Lawyers today to arrange a free consultation.