In the recent judgment, the Land and Environment Court tackled a key procedural issue: whether the outcome of a Section 8.2 review is appealable.

This judgment sheds light on the appealability of review determinations, particularly when the review outcome results in a “change” rather than a “confirmation” of the initial decision.

Background

Urban Link Architects applied for development consent to construct a dual-occupancy development in Winston Hills, NSW. When Parramatta Council initially refused the application, Urban Link sought a review of this refusal under Section 8.2 of the Environmental Planning and Assessment Act 1979 (EPA Act), which allows applicants to request a consent authority to review its own determination. The review, conducted by the Council, once again resulted in a refusal.

Urban Link then appealed to the Land and Environment Court, which raised the question: was the Council’s decision after the review merely a “confirmation” of the initial refusal, or did it amount to a “change,” creating a new, appealable decision?

The Court’s Analysis and Determination

The Court examined whether Parramatta Council’s review determination was substantively different from the original decision.

Notably, Section 8.4 of the EPA Act allows a review to either confirm or change the original decision. In this case, Urban Link argued that the Council’s review determination changed the original decision because it provided a new date, altered reasons, and reflected updated documents from Urban Link.

Ultimately, the Court sided with Urban Link, finding that the review outcome was indeed a “changed” determination, not merely a confirmation. This distinction allowed Urban Link to appeal the review outcome as a fresh decision, triggering a new timeline for filing the appeal.

Implications for future cases

This judgment reinforces that outcomes of Section 8.2 reviews can be appealable if the review process results in a material change, not just a re-affirmation, of the original decision. This confirms that a Section 8.2 review can generate an appealable outcome if the circumstances are right.

This decision underscores the importance of examining whether a review determination genuinely “changes” an initial decision, as a “changed” determination may open the door to an appeal in court, expanding the options for applicants facing council refusals.

Further reading

You can read the full decision below.