Land and Environment Court - Working Party
Environmental Planning and Assessment – Act and regulation note
Using the ‘clock’ for development applications
The approach in the new Regulation for ‘counting the clock’ is to identify the days which are not to be counted. Applicants can assume that the various clocks are ‘counting down’ unless they have been told by the consent authority (usually the council) that the clock has stopped. When the clock ‘restarts’ it continues to count down from the point where it stopped.
Assessment periods for development applications (DAs)
The new Regulation creates four assessment periods (or 'clocks') for counting the time taken in assessing a DA:
When do the assessment periods start?
When calculating the length of each assessment period, the day on which the DA is lodged, as well as the following day, are not included.
This recognises that the consent authority needs time to register and check the DA before assessment can begin.
The deemed refusal period starts on the second day after the DA is lodged with the consent authority if the application:
If the application does not identify all relevant integrated development approvals or concurrence requirements the consent authority might take longer than the two days to check the application. In this case a ‘safety net’ applies, and the deemed refusal period starts at the beginning of either:
Notification of decision by referral body
The period for the referral body to notify its decision starts when it receives:
The period to make a request for information and stop all assessment periods, starts:
What stops the ‘clock’?
Additional information on a DA may be requested at any time. However, under the new Regulation the assessment period ‘clocks’ stop only when the request is made:
For integrated development involving Aboriginal relics or places of Aboriginal significance, the clocks can stop if the Director-General of NPWS consults with the Aboriginal community. However, this must start in the first 25 days after the DA is referred. In these cases the assessment period ‘clocks’ are stopped (but only up to 46 days from the date of lodgement of the DA).
How does ‘stop the clock’ work?
When a clock is stopped any assessment period ‘clock’ that is running is stopped. This means that the time between the stopping and restarting of the ‘clocks’ is not counted in determining the relevant assessment period.
If there are other requests for information while the ‘clocks’ are stopped, they stay stopped until all requests have been resolved (that is satisfied, refused or a mixture of both). After the assessment ‘clocks’ have been restarted, they can be stopped again to ask for information if there is still time left.
The stopping and restarting of the ‘clocks’ have been synchronised to lessen the likelihood of the deemed refusal period for the DA ending before the time elapses in which a referral body is required to notify the consent authority of its decision in relation to the DA.
When do the ‘clocks’ stop and restart?
If the consent authority asks for more information in the 25 days allowed, all the assessment period ‘clocks’ stop on the day of the request. If a referral body makes the request, the ‘clocks’ stop on the day that the consent authority receives the request.
When the request is made, the consent authority or referral body has an option of setting a 'reasonable period' within which the information must be provided to the consent authority.
The assessment period 'clocks' are restarted if the applicant:
The clocks can also be restarted by the consent authority if the applicant does not give the information in the reasonable time specified or any further period of time allowed (treated as a refusal).
If just the consent authority asks for information, the assessment periods restart on the day that the information is provided (or a refusal to provide the information occurs). If a referral body makes a request, the ‘clocks’ restart 2 days after the consent authority refers the requested information (or notifies that the information will not be provided) to the other agency.
When identifying when assessment periods start and stop, it is important to remember the effect of the Interpretation Act 1987. Section 36 of that Act prevents any assessment period from ending on a Saturday, Sunday, or public holiday. In these cases the next working day is taken to be the last day of the assessment period.
Under the new Regulation:
As a matter of good practice:
New powers for the rejection of DAs
The clocks are also affected by the power to reject DAs. Under the new Regulation, in addition to being able to reject a DA within 7 days of lodgement if the application is illegible or it is unclear as to the consent being sought, a consent authority may reject a DA within 14 days of lodgement if:
Examples of ‘stop the clock’
Two examples of the use of ‘stop the clock’ are attached. Consent authorities and referral bodies are encouraged to prepare their own flow charts to assist in monitoring the progress of the assessment periods for DAs they are assessing.
Copies of the new Regulation
The new Regulation is available from the NSW Government Information Service (phone 02 9743 7200 or 1800 463 955) or from the Australasian Legal Information Institute website (www.austlii.edu.au).
For further information please contact:
Policy and Reform Branch
Department of Urban Affairs and Planning
GPO Box 3927 Sydney NSW 2001
Phone: 9391 2026
Fax: 9391 2236