Land and Environment Court - Working Party


Appendix A: Using the "Clock" for Development Applications

Department of Urban Affairs and Planning

Environmental Planning and Assessment – Act and regulation note

Using the ‘clock’ for development applications


This note outlines the procedures under the Environmental Planning and Assessment Regulation 2000 (the new Regulation) for stopping and restarting the ‘clock’ when additional information is requested on development applications (DAs).

Introduction

Development assessment must balance the need for proper consideration of a proposal with a timely decision on whether it can go ahead. Councils and other public authorities that assess DAs are given 40 or 60 days to determine an application. After that time the applicant can ask the Land and Environment Court to consider the DA.

Having the right information about a proposal is critical to proper assessment of the DA. Allowing the ‘clock’ to be stopped for additional information requests (but only within certain periods) helps the consent authority to make a good decision on a DA while not unduly holding up the decision for the applicant.

The new Regulation:



• refines the stopping and restarting of the ‘clock’ for DA assessment procedures where additional information is requested about a DA
• expands the situations in which a consent authority may reject a DA.

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:


• the 40 or 60 days deemed refusal period for the DA (after this time the applicant can appeal to the Land and Environment Court)
• the 40 days or 21 days for a concurrence authority to notify its decision about a DA that requires concurrence
• the 40 days or 21 days for an approval body to notify its decision about a DA for integrated development
• the time given to a consent authority or a referral body to ask for more information (which can be extended by stopping the clock).

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.

Deemed refusal

The deemed refusal period starts on the second day after the DA is lodged with the consent authority if the application:


• is an ordinary DA (it does not have to go to any referral body), or
• the DA identifies that referral is required (and it is referred in two days).

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:


• the 14th day after the DA is lodged or
• the day the application is referred, but only if it is referred before the end of the 14 days.

Notification of decision by referral body

The period for the referral body to notify its decision starts when it receives:


• the application from the consent authority (for non-advertised development), or
• the last of the submissions on the DA or notification that there were no submissions (for advertised/notified development).

Additional information

The period to make a request for information and stop all assessment periods, starts:


• for the consent authority, on the same day as the deemed refusal period starts
• for a referral body, on the day the DA is received from the consent authority.

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:


• by the consent authority within 25 days from the start of the deemed refusal period, or
• by a referral body within 25 days of receiving the DA from the consent authority.

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:


• gives the information to the consent authority, or
• notifies the consent authority (in writing) that the information will not be provided.

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.

Significant issues

Under the new Regulation:


• When a DA that is for integrated development or requires concurrence has to be advertised or notified, the consent authority must send a copy of all the submissions to each referral body immediately after the submission period
• referral bodies have 14 days after receiving a copy of the findings and recommendations from a Commission of Inquiry to change concurrence conditions or general terms of approval
• a consent authority that rejects a DA must notify the referral bodies.

As a matter of good practice:


• the consent authority’s notification to the applicant that the ‘clock’ has been stopped should be given as soon as the consent authority makes or receives the request for information
• referral bodies should promptly acknowledge receipt of a DA or submissions from the consent authority (for example, by email/phone)
• electronic transfer of requests (and information) will help reduce turnaround times on DAs, and minimise the time the assessment period ‘clocks’ are stopped
• referral of DAs within 2 days will be easier to achieve if there is pre-DA consultation to identify the referrals needed and clarify whether a species impact statement (SIS) is likely to be required
• if a DA has been sent to more than one referral body and there is a request for additional information, the consent authority should tell the other referral bodies about the request and (where it applies) about the stopping and restarting of the ‘clock’. The other bodies can then decide whether they also need the information.

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:


• the DA is for integrated development but the required approvals have not been identified or the fees for integrated development have not been paid
• the DA needs an SIS because of the potential impact on the environment of threatened species, but one has not been submitted.

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
Email reform@duap.nsw.gov.au