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.
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.
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:
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.
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