By Anthony Whealy, Partner, James Oldknow, Special Counsel and Anthony Russell-Thomas, Lawyer
Navigating the NSW planning system in 2026 has become increasingly complicated, with some applicants encountering procedural roadblocks even before their development application (‘DA’) or modification application (‘Mod’) is ‘lodged’.
Since the replacement of ‘over the counter’ lodgement with ‘online’ lodgement via the NSW planning portal, we have observed a growing number of applicants reporting delays and indeed roadblocks at the very initial stage of DA and Mod lodgement.
Delay at initial lodgement stage is occurring largely where local councils are either:
These actions have the serious procedural effect of preventing a DA or Mod from being ‘lodged’. Until a DA or Mod is ‘lodged’, the consent authority is under no obligation to progress the application at all – resulting in delayed assessment timelines, delayed appeal rights to the Land and Environment Court of NSW and potentially exposing applicants to changed planning controls (such as when legislation is amended before ‘lodgement’). Increasingly, we are seeing these tactics being deployed by councils routinely, sometimes repeatedly (for the very same application) and we suspect often deliberately / tactically.
This article explores the above topics and summarises the legal options that are available to applicants when a council ‘rejects’ a DA or Mod without assessing it, or fails to issue the required invoice for payment of assessment fees.
Legal Framework: In what circumstances can a Council ‘reject’ (i.e. return) a DA or Mod?
Under section 39 of the Environmental Planning and Assessment Regulation 2021 (‘EP&A Reg’), there are limited circumstances where a council can simply ‘reject’ a DA so as not to deal with it.
Specifically, once a DA has been ‘submitted’ on the NSW planning portal a council can only reject a DA:
The above grounds are essentially repeated for any Mod within section 114(1)(a) to (d) of the EP&A Reg.
Any rejection of a DA or Mod outside of the above framework may constitute a jurisdictional error by a local council and be susceptible to legal challenge in Class 4 of the Land and Environment Court’s jurisdiction – being a jurisdiction where successful parties are routinely awarded their costs. For example, we often see councils purport to ‘reject’ and return DAs or Mods well outside of their 14 day window to do so. Any such rejection would not be legally valid. Unfortunately, many applicants / developers appear to be unaware of this, in our experience.
Section 39(1) of the EP&A Reg prescribes the limited grounds available to a consent authority to ‘reject’ a DA. We have extracted this section below:
(1) A consent authority may reject a development application within 14 days after receiving the application if—
(a) the application is illegible or unclear about the development consent sought, or
(b) the application does not contain the information and documents that are required by—
(i) the approved form, or
(ii) the Act or this Regulation, or
(c) for an application for State significant development—the Planning Secretary considers the application incomplete for reasons given by written notice to the applicant, or
(d) for an application for integrated development—the application does not identify all of the approvals required to be obtained, as referred to in the Act, section 4.46, before the development may be carried out, or
(e) for an application required to be accompanied by a biodiversity development assessment report under the Biodiversity Conservation Act 2016 — the application is not accompanied by a report, or
(f) for an application required to be accompanied by a species impact statement under the Fisheries Management Act 1994, section 221ZW —the application is not accompanied by a statement.
For the purpose of section 39(1)(b)(i) above, the term “approved form” is defined in Schedule 7 of the EP&A Reg as ‘a form approved by the Planning Secretary and published on the NSW Planning Portal’.
As at the date of this article, the approved form can be accessed at the Department of Planning and Environment’s publication “Application Requirements” (March 2022).
In simple terms, a local council may only reject an ordinary detailed DA on the following limited grounds:
Importantly, a local council has no power to ‘reject’ a DA at the ‘lodgement’ stage based on matters of merit. The job of a local council when accepting (or rejecting) a DA at ‘lodgement’ is limited to ensuring that all the nominated information and documents have, in fact, been provided, not to pre-emptively dismiss an application on the basis that it is unlikely to ultimately be supported.
Matters of merit are only to be considered by a local council once a DA has been accepted and the fees for assessment have been paid by the applicant. That is, once the DA has been ‘lodged’.
The matters for a local council (and the Court on appeal) to consider during the assessment process for a DA are clear and unambiguous and contained in section 4.15(1) of the EP&A Act.
As stated above, the above grounds are essentially repeated for a Mod pursuant to section 114(1)(a) to (d) of the EP&A Reg.
We are regularly asked to review DAs and Mods (pre-submission) to ensure they comply with the prescribed requirements, including those set out in the “approved form” and the requirements under the EP&A Act and EP&A Reg, to ensure that they are not wrongly ‘rejected’, particularly in those council areas where the relevant council has a reputation for routinely attempting to ‘reject’ DAs or Mods for even the most trivial of reasons.
Certainly, we have recently seen a dramatic uplift in instances where a local council has rejected a DA or Mod for reasons beyond the above requirements – for example, on a merit-based issue. Rejecting a DA or Mod for circumstances outside those prescribed in the EP&A Reg can be remedied by certain Land and Environment Court proceedings.
Below, we explore practical actions that are potentially available where a local council rejects a DA or Mod prior to ‘lodgement’.
As set out above, under the EP&A Reg, a local council has only 14 days from submission of a DA or Mod via the NSW planning portal to reject the application.
If a local council rejects a DA or Mod beyond that 14-days, or on grounds outside those set out above, that decision is legally invalid as it is beyond power and it may be susceptible to judicial review in the Land and Environment Court of NSW. We set out the remedies that are potentially available to applicants in section 3 of this article below.
As at the date of this article, a DA must be submitted via the NSW planning portal. However, if a local council neither issues an invoice for assessment fees nor formally rejects the DA once it has been submitted (i.e. uploaded) to the planning portal, the DA is left in a state of procedural limbo because a DA is only considered ‘lodged’ on the day that the relevant assessment fees are paid. Put simply – an applicant cannot pay the invoice, if the invoice is never issued. In our experience, a number of councils do routinely take advantage of this anomaly.
Relevantly, section 24(3) of the EP&A Reg provides:
(3) A development application is lodged—
(a) on the day on which the fees payable for the development application under this Regulation are paid, or
(b) if the applicant is notified under Part 13 that no fee is required—on the day the applicant submitted the application on the NSW planning portal.
Again, the above provisions are repeated for any Mod pursuant to section 99(4) of the EPA Reg.
It is critical to understand that where an invoice has not been issued and paid:
This position was confirmed by the NSW Court of Appeal in Hinkler Ave 1 Pty Ltd v Sutherland Shire Council [2023] NSWCA 264 (‘Hinkler’). In Hinkler, the Court held that a DA is not considered ‘lodged’, until the invoice is issued via the NSW Planning Portal and paid (at [46]).
The facts in Hinkler highlight the importance for local councils to adhere to their statutory obligation to either accept, or properly reject, a DA within 14-days from submission via the NSW planning portal.
Relevantly, in Hinkler, the applicant had prepared a DA seeking consent for a mixed-use development, including, in part, a component of affordable housing. In Hinkler, the applicant uploaded the DA to the NSW planning portal on 22 October 2021. However, the council did not notify the applicant of the application fee until 2 December 2021 – some 5 weeks later (!). The applicant paid the application fee shortly thereafter.
The delay in notifying the application fee by the council was material in Hinkler, as the SEPP (Affordable Rental Housing) 2009 (‘SEPP ARH’) was repealed and replaced by SEPP (Housing) 2021 (‘SEPP Housing’) on 26 November 2021 – that is, during the period between when the DA was first uploaded to the NSW planning portal and when the DA application fee was subsequently paid. The consequence being that the DA was now required to be assessed against the (more onerous) SEPP Housing.
A savings provision was included in the SEPP Housing to protect DAs “made, but not yet determined” before its introduction on 26 November 2021. Meaning that if the DA had been “made” (i.e. lodged) prior to 26 November 2021, it would have been saved from the operation of the SEPP Housing and subject to the former SEPP ARH, notwithstanding its repeal. However, because the local council did not issue an invoice for assessment fees until 2 December 2021 the Court held that the DA was not “made” in time for the relevant savings provision to apply (see [85]).
Importantly, the NSW Court of Appeal noted at [159] that the failure to issue an invoice for assessment fees within the statutory timeframe may constitute a breach of legal duty that may be remedied by an applicant seeking an order of ‘mandamus’ from the Land and Environment Court of NSW. That is – where there is a serious delay caused by a council in issuing a DA invoice, an applicant should consider taking injunctive proceedings against the council.
Interestingly, we have observed a serious uptick in local councils either delaying invoices or rejecting DAs outright since the NSW Government began publishing its “league table” of DA assessment times.
We note that the league table only technically measures a local councils’ DA assessment times after a DA is ‘lodged’ – noting, as we have set out above, a DA is not lodged until the assessment fees are paid. By failing to issue invoices or rejecting DAs, a sceptic might say that there is a pathway available for reported DA assessment times to be manipulated.
Where a DA or Mod is rejected, applicants are not without recourse. Depending on the nature of the rejection, internal review may be available under section 8.2 of the EP&A Act. This mechanism allows the local council to reconsider its own decision (ideally with the benefit of legal submissions), often providing a faster and less adversarial pathway to resolution in contrast with court proceedings. Internal review is particularly useful where the rejection is based on misunderstandings such as illegibility about the development or modification sought, as set out above.
In parallel, judicial review remains available in the Land and Environment Court of NSW, in circumstances where a rejection involves a jurisdictional error. In such cases, remedies such as certiorari (to quash the decision) and mandamus (to compel the public authority to discharge its duty by accepting the DA or Mod lodgement and/or issuing an invoice) may be sought to ensure the DA or Mod rejection is quashed and the DA or Mod is ultimately accepted so that an invoice is issued.
We now regularly write to consent authorities on behalf of applicants, putting consent authorities on notice of potential judicial review proceedings and demanding rectification. The aim of course is to resolve such disputes promptly without needing to commence court proceedings.
If judicial review proceedings are necessary, the general rule is that costs follow the event, meaning that if you are successful, the respondent (typically the local council) will be ordered to pay your legal costs on an ordinary basis.
Need further assistance?
If you require assistance navigating issues with the lodgement or rejection of your development (or modification) application, we are ready to assist.
If you would like further information or have any queries regarding other matters, please do not hesitate to contact:
