Land and Environment Court - Working Party


4.3 Delays in the assessment process

4.3.1 Duration of the assessment periods

The time taken by councils to assess and determine development applications was one of the most commonly raised concerns in submissions to the Working Party. A number of developers called for steps to be taken to reduce delays in the assessment process, which they claim are frequent and costly to them. On the other hand, a number of councils argued that the assessment periods (currently 40 days, or 60 days for designated or integrated development) are too short, particularly given the growing complexity of the assessment process and the fact that most development applications are now advertised.

As the law presently stands, a development application is taken to be refused if it is not determined within 40 days, or 60 days in the case of designated development, integrated development or development for which concurrence of an approval body is required. Councils have argued that matters relevant to the assessment of a development application have increased enormously over the last 20 years. They are now required to have regard to such matters as pollution implications, the protection of heritage, native title entitlement, endangered fauna and flora, as well as the more traditional town planning heads of consideration. In recent times the government has introduced the concept of “integrated development” which has reduced problems inherent under the old system whereby separate and successive applications were required to be made to different approval bodies. Now the system has the practical effect of ensuring that approval bodies and consent authorities are required to address the relevant issues in greater detail at the development application stage than was previously the case.

Councils argue that with respect to designated development and integrated development they are dependant upon a cooperation of relevant approval bodies not all of which are as efficient as the Environment Protection Agency. It is not clear why a 40-day period (and later a 60-day period for certain nominated development) was selected in the first place. However, at the present time, some councils appear to have no difficulties in dealing with developments within the prescribed period, while others are inordinately slow.

Bearing in mind the wide disparity between councils concerning the average time taken to determine development applications, extending the period of time beyond that presently provided would have the probable result that the extended period would become the shortest time within which some councils would deal with applications.

It must also be remembered that councils rarely start with a clean slate when determining a development application. The law imposes obligations on applicants to lodge with the development application a statement of environmental effects and, if appropriate, an environmental impact statement, species or fauna impact statements etc. If properly prepared, these statements should alert the council to the consequences of granting or not granting development consent and, if the consent is to be granted, what conditions should be attached to it.

It should be borne in mind that even after an appeal has been lodged against a deemed refusal a council would normally have at least another forty days in which to determine whether to grant development or to refuse it before, at the earliest, an appeal would be heard.

4.3.2 Stopping the clock

As noted previously (see 2.2.4 “Stop the Clock” provisions of the Environmental Planning and Assessment Regulation 2000) it was clear from a number of submissions from local councils that some councils were unaware that they could extend the time they had available to consider development applications before a deemed refusal would take effect by “stopping the clock”.

Clauses 54, 109 and 112 of the Environmental Planning and Assessment Regulation 2000 allow the assessment period to be extended to give the applicant time to provide the council with additional information relevant to the assessment of the application, and to give the council time to consider that information.

Further information on these provisions is found in Appendix A, which reproduces a note on the legislation issued by the Department of Urban Affairs and Planning.

The Working Party is of the view that if councils use the ‘stop the clock’ provisions whenever appropriate, this should reduce the number of appeals to the Court against deemed refusals.


It should also to be noted that it is a recommendation of the Working Party that a period of review provided for by section 82A of the legislation should be extended to one year (the time within which a development appeal must be lodged) or, where an appeal has been lodged, until the matter has been disposed of by the Court. Within that period the council will be legally empowered to grant a development consent or to alter a consent contrary to its previous decision.


Recommendation 4: Duration of the assessment periods

The 60-day assessment period applying to development applications for designated or integrated development, or development for which concurrence of a concurrence authority is required, and the 40-day period applying to applications for other types of development, should be retained.

4.3.3 Integrated development

A number of councils have pointed out that, in dealing with development applications for integrated development, they are dependent on the cooperation of relevant approval bodies. Under the current system, councils may be required to coordinate responses from a number of State government agencies in relation to an application, but have no power to compel them to respond within an appropriate time.

The Local Government and Shires Associations proposed that responsibility for coordinating approval body responses should be given over to the Department of Urban Affairs and Planning. It was suggested that a request from the Department, especially if backed by the authority of the Premier’s Department, would be treated as a higher priority than a similar request from a local council, and that this may lead to more timely responses..

While there may be an advantage in having a central agency coordinate the responses of approval bodies to applications for integrated development, the Working Party is not convinced that it would result in significantly faster responses. It may simply complicate the process.

A more effective way to encourage timely responses from approval bodies would be for councils to exercise their power to join such bodies as respondents in appeals. For example, if an appeal is lodged as a result of an approval body failing to provide a council with information within the required time, that body may be joined by the council as a respondent, and will potentially be liable to an adverse costs order (see 9.4 Costs orders). Where the only matter at issue is a requirement of an approval body, and the relevant council has no objection to the development, then the council may enter a submitting appearance and the appeal can be determined in the Court between the approval body and the applicant.

As previously mentioned, the Environment Protection Authority, reported a very good record of timely responses: in the 1999/2000 financial year, it was able to issue General Terms of Approval to councils within the prescribed period in over 90% of cases. Further inquiries revealed that the Environment Protection Authority has made a considerable effort to thoroughly train its staff in the processes associated with the assessment of such applications. In light of this, the Working Party is of the view that appropriate training may go a long way to addressing the problems (in particular delays) currently being experienced.

The law provides that where an approval body fails to communicate a decision within the prescribed period, the council may determine the application and, if it does so by granting a development consent, the approval body is then bound to grant an approval which is not inconsistent with that consent. It would of course be an unfortunate state of affairs if unnecessary environmental damage was, in effect, authorised because of the failure of a regulatory authority to discharge its functions and a refusal of a council to address the problem. No instance of that happening was brought to the attention of the Working Party. However, where an appeal is the result of the tardiness of the regulatory authority, as noted above the authority could become susceptible to an adverse costs order.



Recommendation 5: Training on integrated development

There is a need for appropriate training of approval body staff in the processes associated with the assessment of applications for integrated development. Lack of knowledge appears to be contributing to delays.