Land and Environment Court confirms no right of appeal from a development application (DA) rejection, including when it is rejected for lack of owner’s consent

In Johnson Property Group Pty Limited v Lake Macquarie City Council (No 2) [2020] NSWLEC 42, the Land and Environment Court recently confirmed that there is no right of appeal from a consent authority’s decision to reject a DA (within 14 days of lodgement), or similarly from its review of that decision. This includes where the development application is rejected for lack of owner’s consent.

No appeal from rejection of DA – Parkes overturned

The question addressed by Duggan J in Johnson was whether the applicant had a right of appeal against the Council’s rejection of its development application. The DA included a proposal for works on a public road, but did not include Council’s owner’s consent for the public road works. Council rejected the application, and the applicant sought a review. On review, Council refused the review application. The applicant lodged an appeal.

In the appeal the applicant relied on Parkes v Byron Shire Council [2003] NSWLEC 104 as authority for the proposition that there is an appeal right arising from the rejection of a DA by a consent authority. In that case, it is assumed Lloyd J accepted that a Council’s “decision” to reject a DA was synonymous with a “determination” which under (former) section 97 of the EPA Act triggers a right of appeal.

However in Johnson Duggan J confirms that when a consent authority does reject a DA within 14 days, including for lack of owner’s consent, an appeal right does not exist under the legislation, so there is no basis to challenge this decision in the Land and Environment Court.

Her Honour’s key findings include:

1. Although some review decisions may be the subject of an appeal, the right of appeal only applies to a review decision if the original decision was appealable (at 39, 41).
2. A decision to reject a DA pursuant to clause 51 EP&A Regulation is not an appealable determination. Despite the wording in clause 51(3) referring to “determination”, Justice Duggan observed that this provision is “...clearly speaking of a decision to reject and not a determination in the same sense that it has been used in the Act.”

Her Honour distinguished Parkes on the basis that the legislative scheme has since changed and, in any case, it was wrong.

What this means for applicants and consent authorities

It is open to the consent authority to reject a DA which is not accompanied by evidence of owner’s consent at the time of lodgement (and not provided within 14 subsequent days), and although that decision can be reviewed, this decision of the Court clarifies that it cannot be appealed.

Nevertheless, there is no requirement to reject a DA for lack of owner’s consent. It is still the case that owner’s consent can lawfully be provided any time up until determination of the DA for the purposes of a valid determination and development consent – see Botany Bay Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446.

If an applicant is not able to obtain owner’s consent before lodgement of a DA, they should aim to provide it as soon as possible. It would be useful to explain this in the lodged documents.

Summary of relevant legal requirements 

• The information required to accompany a development application is set out in Part 1 of Schedule 1 Environmental Planning and Assessment Regulation 2000. This includes evidence of owner’s consent.
• A consent authority may reject a development application within 14 days after receiving it if does not contain that information or is not accompanied by a document specified the EP&A Regulation (clause 51(1)(b) EPA Regulation).
• The applicant has the right to request a review of the decision to reject the DA (s8.2(1)(c) EP&A Act).
• There is no right of appeal from the original rejection or the review of that decision can be appealed (Johnson).

Please contact us if you wish to discuss this.