Which local councils are fighting high-value development?

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By Aaron Gadiel, Partner

New government figures have revealed the extent to which some NSW local councils have been resisting new development.

The NSW Government has now released performance data for local councils for the 12-month period ending 30 June 2018.  The Local Development Performance Monitoring Report is the only really robust set of figures that allows local council development assessment performance to be reliably ranked.

The local councils refusing the highest-value development applications

For those regularly involved in submitting development applications in Sydney, it will come as no shock to discover the top-10 list of councils who have refused the greatest number of development applications, measured by value.   They are:

  1. Canterbury-Bankstown Council — refusing development applications valued at $238 million in the 12-month period to 30 June 2018;
  2. Cumberland Council — refusing applications valued at $178 million in the same period;
  3. Camden Council — also $178 million;
  4. Central Coast Council —$144 million;
  5. City of Parramatta —$132 million;
  6. The Hills Shire Council —$120 million;
  7. Inner West Council —$119 million;
  8. Northern Beaches Council —$113 million;
  9. Ku-ring-gai Council —$98 million; and
  10. Blacktown City Council—$73 million.

Other high-value refusers who we regularly see in the Land and Environment Court include:

  • Woollahra Council (the 11th highest-value local council at $64 million);
  • the City of Sydney (13th at $54 million);
  • Bayside Council (15th at $50 million);
  • North Sydney Council (16th at $48 million);
  • Waverley Council (19th at $46 million);
  • Georges River Council (20th at $44 million); and
  • Tweed Shire Council (22nd at $37 million).

The local councils taking the longest-time to deal with high-value development applications

Appeals to the Land and Environment Court are often driven by a failure of a local council to quickly progress its assessment of a development application.   When an appeal is filed for this reason, it is called a ‘deemed refusal’ appeal.

The top-10 list of local councils who take the most time to determine development applications for developments of $20 million or more (in the 12-month period to 30 June 2018) is as follows:

  1. Tweed Shire Council — who took an average of 696 days to make a decision (ignoring stop-the-clock), ie around one year and 11 months;
  2. Ku-ring-gai Council— who took an average of 542 days to make a decision, ie around one year and six months;
  3. Fairfield City Council— 536 days, ie also around one year and six months;
  4. Strathfield Council — 535 days, ie again around one year and six months;
  5. Central Coast Council — 506 days, ie around one year and five months;
  6. Canterbury-Bankstown Council — 490 days, ie around one year and four months;
  7. Blacktown City Council — 480 days, ie also around one year and four months;
  8. Lane Cove Council — 464 days, ie around one year and three months;
  9. Coffs Harbour City Council — 462 days, ie also around one year and three months; and
  10. Burwood Council— 417 days, ie around one year and two months.

These figures are averages.   This means that — when a council has dealt with multiple development applications during the course of the year — many development applications will suffer more lengthy assessment timeframes.

Many of these councils are ‘frequent flyers’ in the Land and Environment Court (see below).  Where a local council is subject to a significant number of ‘deemed refusal’ appeals,  these average determination times will, in part, be influenced by the ‘deemed refusal’ appeals  fast-tracked through the Land and Environment Court process. (That is, councils that are frequently litigated may actually have shorter determination times as a result of the Court process.)

Some of the above councils —such as Coffs Harbour Council — only deal with a small number of development applications more than $20 million.  However, even for local councils who determine the greatest numbers of development applications valued at $20 million or more — average assessment times are not brilliant:

  1. City of Parramatta — who dealt with 25 such development applications in the 12-months to 30 June 2018 and still took an average of around 11 months to make a decision;
  2. City of Sydney —dealt with 25 development applications, but took around 10 months to make a decision (although this is an example council where a significant number of ‘deemed refusal ‘ appeals are lodged);
  3. Cumberland Council — dealt with 14 development applications, but took around 11 months to make a decision; and
  4. Liverpool City Council — dealt with 12 development applications, but took around one year and one month to make a decision.

The local councils most likely to be appealed in the Land and Environment Court

The local councils who were most likely to find their decisions (or failure to make a decision) appealed in the Land and Environment Court (together with an inferred success-rate for applicants) was (in the 12-months to 30 June 2018) as follows:

  1. Inner West Council — 75 appeals, with a 76 per cent applicant success-rate;
  2. Canterbury-Bankstown Council — 54 appeals, 70 per cent applicant success-rate;
  3. City of Sydney — 41 appeals, 68 per cent applicant success-rate;
  4. Randwick City Council — 29 appeals, 76 per cent applicant success-rate;
  5. Northern Beaches Council — 25 appeals, 72 per cent applicant success-rate;
  6. Sutherland Shire Council — 19 appeals, 79 per cent applicant success-rate;
  7. North Sydney Council — 17 appeals, 76 per cent applicant success-rate;
  8. City of Parramatta — 16 appeals, 50 per cent applicant success-rate;
  9. Waverley Council — 16 appeals, 63 per cent applicant success-rate; and
  10. Georges River Council — 15 appeals, 80 per cent applicant success-rate.

(There are anomalies in the data provided by local councils about the outcome in Court proceedings.  We have inferred the applicant success-rate by deducting the number of appeals that local councils have reported as being dismissed/withdrawn from the total number of reported court determinations — and then expressing that as a percentage of overall cases determined for that council.)

The applicant-success rates vary across all local councils.  At one end it is 100 per cent (mostly in local councils with only one or two appeals).  Towards the other end of the spectrum it is 33 per cent (Cessnock City Council, which had only three appeals, of which two were withdrawn or dismissed).

The average rate of applicant success across all councils which were the subject of merit appeals was 66 per cent.  Its worth noting that our success-rate in merit appeals is considerably higher than this figure.  In our view, an applicant’s success in a merit appeal process is closely linked to the quality of the applicant’s legal representation and the skills of key experts in the team.

What does this all tell us?

Local councils are continuing to resist high-value development applications.  The local council areas where resistance is greatest also generally reflect the areas that are experiencing the highest level of market demand for new housing and new work premises.

The discipline of the robust appeal process offered by the Land and Environment Court continues to deliver successful outcomes to the majority of development applicants.   We note that, in our experience, most appeals in the Court are able to be resolved by agreement in the earlier stages of Court proceedings.  This partly reflects the role the court process plays in encouraging a local council to robustly consider the application on its true merits.

For further information, please do not hesitate to contact us.

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