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How long does a Council have to determine a Development Application in NSW?

A common question is how long does a Council have to determine a Development Application in NSW before the applicant has the option of appealing in Court.



The short answer is "it depends". The long answer is provided below.


Clause 113 of the Environmental Planning and Assessment Regulation 2000 provides that an application can be taken to be refused if it has not been determined within the following periods of time:

(a)  40 days, except in the case of development referred to in paragraph (b) or (c), or

(b)  60 days, in the case of:(i)  designated development, or(ii)  integrated development (other than integrated development that, pursuant to State Environmental Planning Policy No 62—Sustainable Aquaculture, is Class 1 aquaculture development), or(iii)  development for which the concurrence of a concurrence authority is required, or(iv)  a development application that is accompanied by a biodiversity development assessment report and that proposes a discount in the biodiversity credits required under the report to be retired, or

(c)  90 days, in the case of State significant development.


The vast majority of applications will fall within the 40 day category, although some larger applications will fall within the 60 day category. These are typically applications that require referral by the Council to a state government agency or where the environmental impacts are greater. The 90 day category typically covers applications assessed by the Department of Planning and Environment.


For applications within the 40 day category, the deemed refusal period is measured from the date that the Development Application is lodged with the consent authority.


Once an application is deemed to be refused as it has not been determined within these required dates, an applicant has the option of appealing to the Land and Environment Court within 6 months.


Note that Council does have the ability to reject an application within 14 days for a number of reasons as outlined in clause 51 of the Environmental Planning and Assessment Regulation.


Council does also have the power to request additional information from an applicant, which has the effect of "stopping the clock" with regard to the assessment times specified above. Council can request additional information within 25 days of receiving the application. The clock can then be restarted by the applicant providing the information to Council or advising Council that the information will not be provided.


For further enquiries regarding assessment periods, feel free to get in contact with me via 0423163597 or david@dcaplanning.com.au

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@ Copyright by David Carey | Urban City Planner, Project Manager and Development Consultant

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