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A recent Land and Environment Court decision has clarified the process to be followed for formally amending a development application (DA), and provides guidance on when such amendments will restart the calculation of time for the purpose of establishing whether a deemed refusal has occurred. Getting this calculation wrong can mean that an appeal may be incompetent. Our legal update examines this important decision and its significant implications for applicants and consent authorities.
Australian Consulting Architects Pty Ltd (Applicant) sought to appeal the deemed refusal of a DA by Liverpool City Council (Council).1 Council sought to have the appeal dismissed on the basis that it had been commenced outside the 6 month window for doing so under s97(1) of the Environmental Planning and Assessment Act (1979) NSW (EP&A Act).
Clause 113 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) provides that a DA is deemed to be refused if it is not determined within a 40, 60 or 90 day period, depending on the type of DA. The deemed refusal period is measured from the date the DA is “lodged” with the consent authority.2
For the purpose of calculating this period, certain days prescribed by the EP&A Regulation are not counted. Relevantly, clause 110 of the EP&A Regulation provides that the days occurring between the date on which the consent authority receives a request for additional information from a concurrence authority or approval body, and the date that is 2 days after such information is provided, are excluded in calculating the assessment period. Such a request is often referred to as a ‘stop the clock’ request.
The Applicant asserted that, for the purpose of calculating the assessment period:
The Court, constituted by Acting Justice Molesworth, concluded that a request for additional information from RMS in the context of responding to the DA under clause 104 does not ‘stop the clock’ under clause 110 of the EP&A Regulation. In this regard, the Court distinguished RMS’ concurrence under provisions such as clauses 84, 86, 88 and 100 of the ISEPP and RMS’ approval under s138 of the Roads Act from the opportunity to respond to the DA under clause 104 of the ISEPP.
The Court also concluded that the proposal to carry out works on a private driveway to sever the connection of that driveway with a public or classified road did not constitute any of the actions specified in limbs (a)-(e) of s138(1) of the Roads Act, and therefore did not require the consent of RMS under s 138 of the Roads Act.
The Court identified three requirements to be met under clause 55 of the EP&A Regulation to amend a DA, and held that that the onus rests with an applicant to establish that these requirements are met. Amendments that do not meet these requirements will not ‘reset the clock’ under clause 113 of the EP&A Regulation.
First, the consent authority must agree to a DA being amended. Silence or inaction by the consent authority following an amendment is not agreement. There needs to be an identifiable response which is focussed on the amendment.
Second, the application to amend must contain sufficient particulars to indicate the nature of the amendments. To meet this requirement, the application to amend must have annexed to it written particulars sufficient to indicate the nature of the changed development. Although not required under the legislation, a comparative table is frequently adopted as a sensible approach. Critically in this case, the amended plans did not adhere to the professional standard applying to the revision of plans, to include in the legend box a revision number, changed plan date and particulars of the amendments to the plan.
Third, there must be certainty with respect to any material amendment. Communications which merely suggest or ‘float’ hypothetical amendments or conceptual alternatives with the consent authority do not have the effect of amending the DA. Nor does dialogue between an applicant and a consent authority regarding possible conditions of consent, or amendments to such conditions, constitute an amendment to a DA.
The Court referred to the recent decision in Lateral Estate Pty Ltd v The Council of the City of Sydney  NSWLEC 6 where the applicant unsuccessfully argued that email correspondence with the consent authority regarding amending the draft conditions of consent was relevantly an amendment to the DA which had the effect of ‘resetting the clock’. In that case, Sheahan J observed:
“A specific form is not prescribed for an amendment to a DA, but it must be made clear to the consent authority that an amendment is proposed. Only then can the consent authority agree to allow the amendment, and do whatever else it is obliged to do, and only then can “deferred refusal” rights arise again… the statutory regime allows that to occur, and it is “not absurd or inconvenient”, but a “second deemed refusal period would only arise in a situation which (sic) the council accepts an amended development application”.
Class 1 appeals constitute the bulk of the Court’s finalised caseload, and 60% of the appeals under s97 of the EP&A Act in 2015 were applications where councils had not determined the development application within the statutory assessment period.3 Accordingly, given the prominence of ‘deemed refusal’ appeals, it is critical that applicants and consent authorities understand the correct approach to calculating the time for a ‘deemed refusal’ and the period within which any deemed refusal appeal must be commenced.
Together these recent decisions clarify the assessment period calculation provisions of the EP&A Regulation which have received relatively little judicial consideration in NSW since 2005, when the Court considered clause 113(2)(a) of the EP&A Regulation and held that ‘lodged’ means the date the DA is lodged in its final form.4
It is now clear that the assessment period ‘clock’ can be reset, and right to appeal against a deemed refusal can be re-enlivened, by amending the DA in accordance with clause 55 of the EP&A Regulation but only where the amendment meets specific requirements. Conversely, a significant consequence of such an amendment is that any right to appeal against a deemed refusal which may have arisen and which subsists prior to the amendment, falls away, and the applicant must wait until the new assessment period has concluded before a deemed refusal appeal may be commenced in respect of the amended DA.
Accordingly, when providing additional information to the consent authority, applicants should carefully consider whether or not they are seeking to formally amend the DA, understanding that one consequence of doing so is that the assessment period will be restarted (and potentially, a new opportunity to commence a ‘deemed refusal’ appeal will arise in circumstances where a deemed refusal appeal in respect of the original DA is now out of time). Where an application is being amended, care should be taken to ensure the requirements of clause 55 of the EP&A Regulation, as elucidated by the Court, are strictly met.
In turn, consent authorities must determine whether to accept the amendment, and formally express their position. Accepting an amendment may require re-notification or re-advertising of the DA, depending on whether the amendment involves additional environmental impacts.
Please contact a member of our environment and planning team for more information.
Australian Consulting Architects Pty Ltd v Liverpool City Council  NSWLEC 129.
EP&A Regulation clause 113(2)(a).
NSW Department of Justice, Land and Environment Court of NSW: Annual Review 2015 (December 2016) p 31.
Ipoh Pty Ltd v Sydney City Council  NSWLEC 514.
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