The date of deemed refusal

In the recent case of Corbett Constructions Pty Ltd v Wollondilly Shire Council, the New South Wales Land and Environment Court considered what date a development application was taken to be refused – that is, the date of deemed refusal.

What is a deemed refusal?

For an application to be deemed to have been refused by a consent authority, a specified period of time must have passed (known as the assessment period). The assessment period is prescribed by the Environmental Planning and Assessment Regulation 2000 (Regulation), and is measured from the date that the development application is lodged.

The measurement of time of the assessment period can be paused (or “stopped”) when a Council requests additional information from an applicant. The measurement of time continues once:

  • information is provided by the applicant; or
  • the applicant notifies, or is taken to have notified, the consent authority that the information will not be provided.

Once the assessment period has passed, an application is deemed to have been refused by the consent authority.

An applicant can appeal the deemed refusal in the New South Wales Land and Environment Court within 6 months of the deemed refusal date.

The facts of Corbett Constructions Pty Ltd v Wollondilly Shire Council

  • 1 July 2016 – a development application was lodged by Corbett Constructions Pty Ltd (Corbett)
  • 11 July 2016 – Wollondilly Shire Council (Council) sent a letter to Corbett requesting additional information that was required to assess the development application. In particular, the letter stated:

“If we do not receive the requested information within 28 days, or if alternative arrangements have not been made, the application may be determined on the current information provided and your application may be refused.”

  • 8 August 2016 – 28 days after the letter from Council, Corbett was still yet to provide Council with the additional information.
  • 20 September 2016 – Corbett and Council exchanged emails, where Corbett acknowledged it had taken some time to put together a response.
  • 11 October 2016 – Council sent a further letter to Corbett, referring to the ongoing communication between the parties and stating that “if the information is not received within seven days it will be assumed that you wish to have the application determined on the information already submitted”.
  • 18 October 2016 – Council sent an email to Corbett stating that Corbett had until 21 October 2016 to provide the additional information. Later on 18 October 2016, Corbett sent an email to Council confirming that the additional information was delivered to Council’s front desk that afternoon.

The legal issue

The critical issue before the Court was when the assessment period was stopped.

If the assessment period was stopped from 11 July 2016 – 18 October 2016, Corbett could bring an appeal against the deemed refusal to the New South Wales Land and Environment Court.

If the assessment period was stopped only from 11 July 2016 – 8 August 2016,  more than 6 months would have passed since the deemed refusal date and Corbett would have lost their right to appeal the deemed refusal.

The result

The Court found that if an applicant fails to provide information within a specified period of time, the Regulation allows councils to grant an extension of time.

It was open to Council, after the expiry of the first period ending 8 August 2016, to provide the Corbett with a revised further period for providing the additional information. Based on the facts, Council had elected a further period of time after 8 August 2016 in which Corbett could provide the additional information.

The Court found that the deemed refusal date was 18 October 2016.

General observations of the Court

The Court also made some general observations about the periods within which additional information must be provided to consent authorities, in particular:

  • There is no obligation under the Regulation for consent authorities to require applicants to provide additional information within a particular period of time. Rather, councils could allow applicants to provide the additional information at their leisure.
  • The time period to provide additional information must be a “reasonable” amount of time, and must provide enough time for the requested information to be prepared and provided.
  • What is a “reasonable” amount of time will depend on the on the development and the complexity of what is being requested by the council.
  • A generic time period for applicants to provide additional information may often be inappropriate – time periods should be tailored to the proposal and consider the type of development or the complexity of the additional information request.

Posted by

Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

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