What to do if council does not grant consent.

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As a Planning Lawyer I am often asked by clients, what can I do if Council does not approve my development application?

How can Council refuse a development application?

A development application can be refused two ways, a development application will be ‘deemed’ to have been refused if the Council has not determined the development application within 40 days or 60 days for designated development and integrated development. An actual refusal of a development application is when the Council provides you with a Notice of Determination advising that the application has been refused and advising on what grounds it has been refused.

What options are available if a development application is refused?

Where the Council has refused consent to a development application, the applicant may request the Council to review its decision within 6 months after the date that the development application was refused. If Council reviews its decision and comes to the same conclusion you have the option of lodging a Class 1 Appeal in the Land and Environment Court.

If you do not want a review of Councils decision you can lodge a Class 1 Appeal in the Land and Environment Court. An appeal must be lodged with the Land and Environment Court within 6 months of the date of refusal.

It is important to note that the 6 months to lodge an appeal runs from the date of the refusal not from the date of the review. In other words, your time to appeal does not stop while you are waiting on the result of the review application.

If your application is a deemed refusal you can lodge a Class 1 Appeal in the Land and Environment Court. A deemed refusal appeal must be lodged within 6 months plus 40 days (or 60 days in certain circumstances) of lodgement of the development application or the right to appeal will be lost if the Council has not actually determined the application.

Once you have lodged an appeal the Council is no longer the Consent Authority and you are asking the Land and Environment Court to approve or review the Councils decision.

As there are strict time limits it is recommended that legal advice is sought at the time that your development application is refused so that your appeal rights are not lost.