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DEVELOPMENT APPLICATIONS

APPLICATION FORM

Development Application Forms may be obtained from the local Council governing the area in which the property, which is the subject of the proposed application, is situated. Councils each have different forms, and often have different requirements as to what information and documentation must be provided in support of a Development Application. It is important to read the form carefully and have regard to what information and documentation is required. 

PRE-LODGEMENT MEETING WITH COUNCIL

Before a Development Application is lodged, it is prudent to arrange a meeting with the relevant Council Planners to discuss the proposed application. It will be possible at this meeting to discuss and address any problems which the Council Planners foresee that the Council will have in approving the application. It is also possible at such a meeting to ensure that the documentation to be annexed to the application is adequate and correct. Examples of such documentation are Statements of Environmental Effects or, in the case of designated development, Environmental Impact Statements.

This consultation prior to lodgement is also important because when the application is lodged it is necessary to pay a lodgement fee based on the value of the development, which can be substantial. 

POST LODGEMENT PROCEDURE

Planner's Report

Following the lodgement of a Development Application, a Council Planner will assess the application and then prepare a report for the purpose of facilitating consideration of the application. Applications are either delegated to a planning officer of the Council for determination, or placed before a planning committee, or placed before the full Council.

When the application is delegated to a planning official, an opportunity is generally provided to consult with that official and make changes that the planner thinks will facilitate approval of the application.

If the application is referred to a planning committee or the full Council for determination, the applicant is generally given the right to attend and make submissions in relation to the application. Generally it is best for a building designer, architect or consultant planner, or other relevant professional, to make these submissions. Usually only a few minutes is provided for submissions to be made. If the applicant is given the opportunity to be heard, an objector will normally be given the same opportunity.

Prior to the application being determined, persons whom the Council considers will be affected by the application are usually provided with an outline of the application and given an opportunity to make submissions. The Council will usually take these submissions into consideration when determining the application and formulating the conditions of Council's consent. 

Decision

Council's decision in relation to a Development Application is forwarded in writing and comprises either a development consent or a letter of determination refusing the application. 

OTHER DETERMINING AUTHORITIES' REQUIREMENTS MAY DIFFER

It is important to appreciate that the above processes and procedures generally apply when local Councils are the relevant determining authority. Even some of these processes and procedures may vary from Council to Council. However, if the relevant determining authority is not your local Council, then the procedures may differ significantly from those outlined. 

WHAT HAPPENS AFTER DEVELOPMENT CONSENT IS OBTAINED?

When no further action is required

If the Development Application was simply for a change of use, for example, and you are satisfied with the conditions of consent there is no need to take any further action. Simply keep the consent in a safe place and ensure that you comply with its conditions.

If the conditions of a Development Consent are not complied with, the Council is at liberty to commence Class 4 Land and Environment Court Proceedings seeking injunctive relief. These proceedings are expensive and costs are generally awarded against the unsuccessful party. 

Where conditions of consent are inappropriate

If it is necessary to change the conditions of consent imposed by the Council, it may be appropriate to make a further application. In that case, the relevant form can be obtained from the Council and the procedure is similar to that of the original development application.

Alternatively, if you are dissatisfied with substantial, as distinct from relatively minor, conditions imposed by Council, you can appeal to the Land and Environment Court under Section 97 of the EPA Act. Such appeal must usually be made within 12 months of the date of notice of the Council's determination.

However, where you wish to correct a minor error, misdescription or miscalculation you may apply to the Council under Section 96 of the EPA Act to request that Council modifies your Development Consent, provided that the development to which the consent, as modified, relates is substantially the same development to that which was originally applied for.

The application for modification may also be subject to notification and other formal requirements and will obviously not be available where the subject matter of the modification is substantial.

These rights to apply for modification or to appeal against certain substantial conditions also apply when the local Council is not the determining authority. 

Where further action is required

Where building work is involved it is necessary to obtain a Construction Certificate prior to building work commencing. This is a separate application, although some Councils allow it to be lodged at the same time as a Development Application. It is unwise to do this unless the building work involved is extremely straight forward.

It will also be necessary to obtain a Certificate of Classification detailing the Classification of the building under the Building Code of Australia. This is the code which regulates building design and construction in Australia. Building work must comply with this code.

Most Conditions of Consent will contain a provision requiring compliance with the Building Code of Australia, however compliance is still required even if such a provision is not contained in the Conditions of Consent. It is important to retain a builder with appropriate expertise and insurance.

Construction Certificates may also be obtained from Private Certifiers. This can sometimes be a speedier method of obtaining a Construction Certificate, however it is also usually more expensive.

WHAT CAN YOU DO IF DEVELOPMENT CONSENT IS REFUSED?

Appeal to the Land and Environment Court

If your Development Application has been refused by the local Council or other relevant determining authority, you can also appeal to the Land and Environment Court under Section 97 of the EPA Act. Such an appeal must be lodged within twelve months of notice of the refusal of the application.

In some circumstances a Council (or other determining authority) will simply fail to determine an application at all, or at least within a reasonable time-frame. In such an instance the Council is usually deemed to have refused the application within 40 days of lodgement and at the end of this 40 day period an appeal in respect of the "deemed refusal" may be lodged with the Court. For some types of development, including "designated development", the 40 day deemed refusal period is extended to 60 days.

The Land and Environment Court is a Court of superior jurisdiction. Proceedings in the Court are determined by Judges and Commissioners. Commissioners are not usually legally trained, and generally have a planning or engineering background. They are technical adjudicators who stand in the place of the Council and determine the matter afresh, without reference to the Council's decision which has been appealed against. 

Lodgement of Application

Proceedings are commenced in the Land and Environment Court to appeal the refusal of a Development Application by way of a Class 1 application. This form should be completed and a copy of the Development Application, all plans and other documents lodged with the application and the letter from the Council determining the application should be filed at the Land and Environment Court. It is necessary to file four copies of the application. The Court will retain one and one other copy must be served on the Council, usually within seven days of filing. There is a filing fee payable which is calculated on the basis of the value of the development. The Registry of the Court can advise what the applicable filing fee is. 

Statement of Issues

A Council, once served with a Class 1 Land and Environment Court Application, is required to prepare a Statement of the Issues it considers relevant to the proceedings within 28 days of service. This document is useful in determining what the issues will be at hearing and the basis pursuant to which the Council intends to defend the proceedings. 

Allocation of Hearing Date

When a Class 1 Land and Environment Court Application is filed, the Court will allocate a date for call over. At this date the proceedings are listed before a Registrar who will list the proceedings for hearing on a later date, if the parties are ready to proceed. 

Preparation of Expert Evidence

Although not strictly required, Class 1 Land and Environment Court Applications are rarely successful unless supported by appropriate expert evidence. Generally such evidence may be obtained from a suitably qualified consultant planner whose expertise is in the relevant area.

A suitably qualified expert should be contacted and provided with full details as to the nature of the Development Application and all documents filed in respect of the Application. The expert must then be asked to prepare a Statement of Evidence which must be filed at the Court and served on Council 14 days prior to the Hearing date. The expert will also have to attend on the Hearing date in order to give evidence and provide the Council with an opportunity to cross examine him or her in relation to his or her evidence. 

Court Hearing

Class 1 proceedings in the Land and Environment Court are usually heard before a Commissioner. Each of the parties presents all of the evidence upon which it wishes to rely to the Commissioner and then makes submissions to the Commissioner as to why it should be successful in the proceedings. A Commissioner will then usually adjourn the proceedings and provide a written decision at a later time. It is only in exceptional circumstances that costs are awarded in Class 1 Land and Environment Court Proceedings. That is to say, each party normally pays their own costs in such proceedings. 

FURTHER INFORMATION

This Information Outline is provided courtesy of Yandell Wright Stell who are experienced in this area of law. They are located at Level 5, 139 Macquarie Street SYDNEY NSW 2000 or call them on (02) 9252-2278 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Yandell Wright Stell Lawyers is a result oriented firm as distinct from a procedurally-oriented firm. The result is achieving your goals as quickly and efficiently as possible and to your best advantage. Our firm through its professionals and support team supply legal services in the following areas of law: *Property law including conveyancing, property development and planning matters. *Commercial dispute resolution and litigation. *Immigration law including all visa applications. *Banking and finance law. *Intellectual property law including trade marks, copyright, designs and patents. *Telecommunications and information technology law. *Insolvency and bankruptcy law. *Corporate, commercial and business law matters. *Family law. We are centrally located in Macquarie Street, Sydney from where we are able to deliver first class results and personal service to all our clients.

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