Part 8 — Reviews and appeals: Environmental Planning and Assessment Act 1979 amendment

. 8.4 Outcome of review (cf previous ss 82A(4A), 82B(5)) (1) After conducting its review of a determination or decision, the consent authority may confirm or change the determination or decision. (2) A determination or decision must not be reviewed under this division, or confirmed or changed, after the Court has disposed of an appeal against the determination or decision. s 8.4: Ins 2017 No 60, Sch 8.1 [2]. Am 2025 No 71, Sch 1[129]. 8.5 Miscellaneous provisions relating to reviews (cf previous ss 82A(10), 82C, 82D) (1) The regulations may make provision for or with respect to reviews under this Division, including— (a) specifying the person or body with whom applications for reviews are to be lodged and by whom applications for reviews and the results of reviews are to be notified, and (b) setting the period within which reviews must be finalised, and (c) declaring that a failure to finalise a review within that time is taken to be a confirmation of the determination or decision subject to review, and (d) providing for the process for making applications for, and the conduct and procedure of, reviews, and (e) setting fees payable for reviews, and (f) setting the period within which a request for a review under section 8.2(1)(c) must be made. (2) The functions of a consent authority in relation to a matter subject to review under this Division are the same as the functions in connection with the original application or determination. (3) If a decision to reject an application for development consent is changed on review, the application is taken to have been lodged on the date the decision is made on the review. (4) If a determination is changed on review, the changed determination replaces the earlier determination on the date the decision made on the review is registered on the NSW planning portal. (5) Notice of a decision on a review to grant or vary development consent is to specify the date from which the consent (or the consent as varied) operates. (6) A decision after the conduct of a review is taken for all purposes to be the decision of the consent authority. (7) If on a review of a determination the consent authority grants development consent, modifies a development consent or varies the conditions of a development consent, the consent authority is entitled (with the consent of the applicant and without prejudice to costs) to have an appeal against the determination made by the applicant to the Court under this Part withdrawn at any time prior to the determination of that appeal. s 8.5: Ins 2017 No 60, Sch 8.1 [2]. Am 2025 No 71, Sch 1[130] [131]. Division 8.3 Appeals—development consents div 8.3: Ins 2017 No 60, Sch 8.1 [2]. 8.6 Decisions subject to appeal to Court under this Division (cf previous s 23F) (1) A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is (if this Division so provides) subject to appeal to the Court under this Division. (2) A decision subject to appeal includes a decision made after a review under Division 8.2. (3) There is no right of appeal under this Division against the following decisions— (a) a decision of the Independent Planning Commission as consent authority under this Act in relation to the carrying out of any development that is made after a public hearing by the Commission into the carrying out of that development, (b) the determination of, or a failure to determine, an application for a complying development certificate. Note. See other restrictions in this Act on the power of the Court to vary conditions of development consent relating to development contributions. ss 8.6, 8.7: Ins 2017 No 60, Sch 8.1 [2]. 8.7 Appeal by applicant—applications for development consent (cf previous s 97) (1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. (2) For the purposes of this section, the determination of an application by a consent authority includes— (a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or (b) any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate. (3) An appeal under this section relating to an application for development consent to carry out designated development in respect of which an objector may appeal under this Division cannot be heard until after the expiration of the period within which the objector may appeal to the Court. ss 8.6, 8.7: Ins 2017 No 60, Sch 8.1 [2]. 8.8 Appeal by an objector—designated development applications (cf previous s 98) (1) This section applies to the determination of an application for development consent for designated development (including any State significant development that would be designated development but for section 4.10(2)), being a determination to grant development consent, either unconditionally or subject to conditions. (2) A person who duly made a submission by way of objection during the public exhibition of the application for development consent (an objector ) and who is dissatisfied with the determination of the consent authority to grant consent may appeal to the Court against the determination. s 8.8: Ins 2017 No 60, Sch 8.1 [2]. Am 2018 No 25, Sch 4 [34]. 8.9 Appeal by applicant—modifications of development consent (cf previous s 97AA) An applicant for the modification of a development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. s 8.9: Ins 2017 No 60, Sch 8.1 [2]. 8.9A Appeal may not be made during review An appeal under this division against a determination or decision must not be made during the period— (a) beginning on the lodgement of a request for a review of the determination or decision under Division 8.2, and (b) ending on the confirmation or change of the determination or decision under section 8.4, the expiry of the period set under section 8.5(1)(b) or the withdrawal of the request by the applicant. s 8.9A: Ins 2025 No 71, Sch 1[132]. 8.10 Time within which appeals may be made (1) An appeal under this division by an applicant for development consent, or for a modification of a development consent, who is dissatisfied with the determination of the application by the consent authority must be made within 6 months after the date the determination is notified or registered on the NSW planning portal. (2) An appeal under this division by an applicant for development consent, or for a modification of a development consent, against a deemed refusal under section 8.11 may be made at any time— (a) after the expiry of the period prescribed by the regulations for the determination of the application for development consent or the modification of the development consent, and (b) before the consent authority determines the application for development consent or the modification of the development consent. (3) An appeal under this division by an objector may be made only within 28 days after the date the objector is notified of the decision appealed against. (4) In calculating the period within which an appeal may be made to the Court against a determination or decision referred to in section 8.2(1)(a) or (b), the period referred to in section 8.9A must be disregarded. s 8.10: Ins 2017 No 60, Sch 8.1 [2]. Subst 2020 No 5, Sch 1.11[7]. Am 2025 No 71, Sch 1[133]. 8.11 Circumstances in which consent taken to have been refused for purposes of appeal rights (cf previous s 82) (1) A consent authority that has not determined an application for development consent (or for the modification of a development consent) within the period prescribed by the regulations for the determination of the application is, for the purpose only of this Division, taken to have determined the application by refusing development consent (or refusing to modify development consent) when that period ends. (2) Subsection (1) does not prevent a consent authority from determining an application after the end of that period. (3) Any such determination of an application does not affect the continuation or determination of an appeal made under this Division against the deemed refusal of consent (or modification of consent) under subsection (1). (4) If any such determination of an application results in the grant of development consent (or the modification of development consent), the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have the appeal withdrawn at any time prior to the determination of the appeal. ss 8.11–8.15: Ins 2017 No 60, Sch 8.1 [2]. 8.12 Notice of appeals to be given and right to be heard (cf previous s 97A) (1) The following are entitled to be given notice of an appeal made under this Division— (a) an objector, in the case of an appeal by an applicant concerning an application for development consent in respect of which the objector has a right of appeal under this Division, (b) an applicant for development consent and the consent authority, in the case of an appeal under this Division by an objector concerning the application for development consent, (c) a Minister or public authority, in the case of an appeal concerning an application for development consent in respect of which the concurrence of the Minister or public authority is required under this Act, (d) the relevant approval body (within the meaning of Division 4.8), in the case of an application for development consent that involves the approval body. (2) Any such notice of appeal is to be given by the relevant consent authority. (3) Anyone who is given any such notice of appeal is, on application to the Court within 28 days after the notice is given, entitled to be heard at the hearing of the appeal if not already a party to the proceedings. (4) In this section, a reference to an application for development consent includes an application to modify a development consent. ss 8.11–8.15: Ins 2017 No 60, Sch 8.1 [2]. 8.13 Effect of appeals on operation of consents (cf previous s 83(2)–(5)) (1) If the granting of a development consent for development (other than State significant development) is the subject of an appeal made under this Division, the development consent ceases to have effect. (2) If an appeal under this Division is discontinued, the consent is revived on the discontinuation of the appeal. (3) A development consent that is granted as a result of a decision on an appeal under this Division is taken to be a development consent duly granted under Part 4. Any such development consent takes effect, subject to any order of the Court, on and from the date the decision is registered on the NSW planning portal. (4) If the effect of a decision on appeal is that development consent is refused, any development consent granted ceases to have effect. (5) Despite anything to the contrary in this section, a development consent is taken to have effect on and from the date fixed by— (a) a court (whether or not the Land and Environment Court) that finally determines an appeal on a question of law which confirms the validity of, or results in the granting of, the development consent, or (b) the Land and Environment Court, if the validity of a development consent granted by that Court is confirmed by, or the development consent is granted by that Court as a result of, such a final determination made by another court that has not fixed that date. ss 8.11–8.15: Ins 2017 No 60, Sch 8.1 [2]. 8.14 Powers of Court on appeals (cf previous s 39(6A) Land and Environment Court Act) (1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (2) The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly. (3) If the consent authority was under this Act required to consult or obtain the concurrence of another person or body before making the decision the subject of an appeal under this Division— (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence has been granted, and (b) in a case where the concurrence has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. (4) If an appeal under this Division relates to integrated development— (a) the Court may determine the appeal whether or not the consent authority has obtained general terms of approval from each relevant approval body, and (b) the Court is not bound to refuse an application for development consent because a relevant approval body has decided that general terms of approval will not be determined or has decided not to grant a relevant approval, and (c) the Court may determine an appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of a relevant approval body. ss 8.11–8.15: Ins 2017 No 60, Sch 8.1 [2]. 8.15 Miscellaneous provisions relating to appeals under this Division (cf previous s 97B; s 39A Land and Environment Court Act) (1) Separate appeals under this Division with respect to the determination of an application for development consent are, as far as practicable, to be heard together. (2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion— (a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or (b) that— (i) it is in the interests of justice, or (ii) it is in the public interest, that the person be joined as a party to the appeal. (3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies. (4) If the determination or decision appealed against under this Division was made by a Sydney district or regional planning panel or a local planning panel, the council for the area concerned is to be the respondent to the appeal but is subject to the control and direction of the panel in connection with the conduct of the appeal. The council is to give notice of the appeal to the panel. (5) If the Minister exercised the functions of the council as consent authority (for Crown development) in respect of a determination or decision appealed against under this Division, the council is to be the respondent to the appeal but is subject to the control and direction of the Minister in connection with the conduct of the appeal. The council is to give notice of the appeal to the Minister. ss 8.11–8.15: Ins 2017 No 60, Sch 8.1 [2]. Division 8.4 Appeals—building and subdivision certification divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.16 Appeals against failure or refusal to issue certificate under Part 6 (cf previous s 109K(1)–(2)) (1) An appeal may be made to the Court against the following decisions of a council under Part 6— (a) a decision to refuse to issue a construction certificate, occupation certificate, subdivision works certificate or subdivision certificate, (b) a decision to issue any such certificate subject to conditions. (2) The appeal may be made by the applicant for the certificate concerned. (3) An appeal may be made only within 6 months after the date on which the decision was made. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.17 Deemed refusal for purposes of appeal (cf previous s 109K(3)) (1) For the purposes only of an appeal under this Division, a council is taken to have made a decision to refuse to issue a certificate (a deemed refusal ) if it has failed to issue the certificate to the applicant within the period prescribed by the regulations. (2) Nothing in subsection (1) prevents a council from determining an application for a construction certificate, occupation certificate, subdivision works certificate or subdivision certificate after the expiration of the applicable period specified in that subsection. (3) A determination made after the expiration of that applicable period does not affect the continuance or determination of an appeal made under this Division in respect of a deemed refusal. (4) If a determination is made after the applicable period to grant the certificate concerned, the council is entitled, with the consent of the applicant and without prejudice to costs, to have any appeal under this Division against a deemed refusal withdrawn at any time prior to the determination of that appeal. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. Division 8.5 Appeals—development control orders divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.18 Appeals concerning orders (cf previous s 121ZK) (1) A person who is given a development control order may appeal to the Court against the order. (2) However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises). (3) The appeal may be made only— (a) within 28 days after the development control order is given to the person, or (b) if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person. (4) On hearing an appeal, the Court may— (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.19 Awarding of compensation concerning orders (cf previous s 121ZL) (1) The Court, on the hearing of an appeal or otherwise, has a discretion to award compensation to a person to whom a development control order is given for any expense incurred by the person as a consequence of the order, including the cost of any investigative work or reinstatement carried out by the person as a consequence of the order. (2) Compensation is to be awarded only if the person seeking the compensation satisfies the Court that the giving of the development control order was unsubstantiated or the terms of the order were unreasonable. (3) A claim for compensation cannot be made more than 28 days after the date on which the Court gives its decision on the appeal or more than 3 months after the date of the development control order if an appeal is not made against the order. (4) Compensation under this section is to be awarded against the relevant enforcement authority who gave the development control order. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.20 Effect of appeal on order (cf previous s 121ZN) If an appeal is duly made to the Court against a development control order, the appeal does not effect a stay of the order. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. Division 8.6 Appeals—miscellaneous divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.21 Appeal concerning decisions on security for development requirements or damage (cf previous s 98A) (1) This section applies in connection with a decision of a consent authority or council relating to security of the kind referred to in section 4.17(6). (2) The applicant for development consent to which the security relates, or a person having the benefit of the consent, who is dissatisfied with the decision may appeal to the Court as follows— (a) an appeal may be made against a decision of the consent authority with respect to the provision of the security (otherwise than by the imposition of a condition of development consent), (b) an appeal may be made against the failure or refusal of the consent authority to release a security held by it, (c) an appeal may be made against the failure or refusal of a council to release a security held by it that has been provided in accordance with a condition of a complying development certificate. (3) An appeal under subsection (2)(a) may be made only within 6 months after the applicant for development consent received notice of the decision. (4) An appeal under subsection (2)(b) or (c) may be made only— (a) except as provided by paragraph (b), within 6 months after the work to which the security relates has been completed, or (b) if the security is provided in respect of contingencies that may arise on or after completion of the work to which the security relates, not earlier than 6 months and not later than 12 months after the completion of the work. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.22 Appeals against refusal to extend consent lapsing period (cf previous s 95A(3)) (1) This section applies to an application under section 4.54 for the extension of the period after which a development consent lapses. (2) The applicant for the extension who is dissatisfied with the determination of the application, or the failure of the consent authority to determine the application within the period prescribed by the regulations, may appeal to the Court. (3) The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against or the end of the deemed refusal period referred to in subsection (2). divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.23 Appeals against revocation or modification of development consent (cf previous s 96A(5)) (1) This section applies to a decision of the Planning Secretary or a council under section 4.57 to revoke or modify a development consent. (2) The applicant for the consent, or any other person entitled to rely on the consent, may appeal to the Court against the revocation or modification of the consent. (3) The appeal can only be made within 3 months after the date on which the revocation or modification of the consent takes effect. (4) On hearing the appeal, the Court may— (a) confirm the revocation or modification, or (b) vary the revocation or modification, or (c) cancel the revocation or modification. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.24 Appeals concerning compliance cost notices (cf previous s 121ZKA) (1) A person on whom a compliance cost notice is served under Part 12 of Schedule 5 (Development control orders) may appeal against the notice to the Court within 28 days after the service of the notice on the person. (2) If an appeal is lodged against an order in relation to which a compliance cost notice has been issued— (a) an appeal may be lodged against the compliance cost notice in the same way as, and at the same time as, the appeal against the development control order concerned, and (b) the Court may deal with the appeal against the compliance cost notice at the same time as it deals with the appeal against the development control order. (3) On hearing an appeal against a compliance cost notice, the Court may— (a) revoke the notice, or (b) modify the notice, or (c) make any other order with respect to the notice as the Court thinks fit. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.25 Appeals with respect to building information certificates (cf previous s 149F) (1) An applicant— (a) who is dissatisfied with a council’s refusal to issue a building information certificate under Part 6, or (b) who is dissatisfied with a council’s failure to issue a building information certificate within the period prescribed by the regulations, or (c) who is dissatisfied with a notice from the council to supply information in connection with an application for a building information certificate, may appeal to the Court. (2) The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against or the end of the deemed refusal period referred to in subsection (1). (3) On hearing the appeal, the Court may do any one or more of the following— (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.26 Regulations (cf previous s 105(1)(p1)(t)) The regulations may make provision for or with respect to reviews and appeals under this Part, and in particular the procedure with respect to any such review or appeal. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2].

DormantIn the Act, awaiting proclamation — no commencement date set

Part 8

Part 8 Reviews and appeals

Reviews and appeals pt 8: Ins 2017 No 60, Sch 8.1 [2]. Division 8.1 Introductory div 8.1: Ins 2017 No 60, Sch 8.1 [2]. 8.1 Definitions: Part 8 In this Part— appeal means an appeal to the Court under Divisions 8.3, 8.4, 8.5 and 8.6. Note. Section 1.4 defines Court as the Land and Environment Court. review means a review by a consent authority under Division 8.2. s 8.1: Ins 2017 No 60, Sch 8.1 [2]. Division 8.2 Reviews div 8.2: Ins 2017 No 60, Sch 8.1 [2]. 8.2 Determinations and decisions subject to review (cf previous ss 82A(1), 82B(1)) (1) The following determinations or decisions under Part 4 are subject to review under this Division— (a) the determination of an application for development consent by a council, by a local planning panel, by a Sydney district or regional planning panel or by any person acting as delegate of the Minister (other than the Independent Planning Commission or the Planning Secretary), (b) the determination of an application for the modification of a development consent by a council, by a local planning panel, by a Sydney district or regional planning panel or by any person acting as delegate of the Minister (other than the Independent Planning Commission or the Planning Secretary), (b1) the decision of the Development Coordination Authority about an aspect of the development that, under the conditions of the development consent, was required to be carried out to the satisfaction of the Development Coordination Authority, (c) the decision of a council to reject and not determine an application for development consent. (2) However, a determination or decision in connection with an application relating to the following is not subject to review under this Division— (a) a complying development certificate, (b) designated development, (c) Crown development (referred to in Division 4.6). (3) A determination or decision reviewed under this Division is not subject to further review under this Division. s 8.2: Ins 2017 No 60, Sch 8.1 [2]. Am 2025 No 71, Sch 1[119] [122]. 8.3 Application for and conduct of review (cf previous ss 82A(2)–(4) (6), 82B(2)–(4)) (1) An applicant for a determination or decision referred to in section 8.2(1) may make a request for a review of the determination or decision. (1A) Subject to subsections (4)–(9), the person or body that made the determination or decision must review the determination or decision if the request is properly made under this division. (2) A request under this division, other than section 8.2(1)(c), for a review of a determination or decision must not be made— (a) after the period within which any appeal may be made to the Court has expired if no appeal was made, or (b) after the Court has disposed of an appeal against the determination or decision. (3) In requesting a review, the applicant may amend the proposed development the subject of the original application for development consent or for modification of development consent. The consent authority may review the matter having regard to the amended development, but only if it is satisfied that it is substantially the same development. (4) The review of a determination or decision made by a delegate of a council is to be conducted— (a) by the council (unless the determination or decision may be made only by a local planning panel or delegate of the council), or (b) by another delegate of the council who is not subordinate to the delegate who made the determination or decision, or (c) if the applicant has requested the review be conducted by the local planning panel—by a local planning panel, other than for a review under section 8.2(1)(c). (5) The review of a determination or decision made by a local planning panel is also to be conducted by the panel. (6) The review of a determination or decision made by a council is to be conducted by the council and not by a delegate of the council. (7) The review of a determination or decision made by a Sydney district or regional planning panel is also to be conducted by the panel. (8) The review of a determination or decision made by the Development Coordination Authority must be conducted by the Development Coordination Authority. (9) The review of a determination or decision made by a delegate of the Minister (other than the Independent Planning Commission) is to be conducted by the Independent Planning Commission or by another delegate of the Minister who is not subordinate to the delegate who made the determination or decision. s 8.3: Ins 2017 No 60, Sch 8.1 [2]. Am 2025 No 71, Sch 1[123]–[125] [128]. 8.4 Outcome of review (cf previous ss 82A(4A), 82B(5)) (1) After conducting its review of a determination or decision, the consent authority may confirm or change the determination or decision. (2) A determination or decision must not be reviewed under this division, or confirmed or changed, after the Court has disposed of an appeal against the determination or decision. s 8.4: Ins 2017 No 60, Sch 8.1 [2]. Am 2025 No 71, Sch 1[129]. 8.5 Miscellaneous provisions relating to reviews (cf previous ss 82A(10), 82C, 82D) (1) The regulations may make provision for or with respect to reviews under this Division, including— (a) specifying the person or body with whom applications for reviews are to be lodged and by whom applications for reviews and the results of reviews are to be notified, and (b) setting the period within which reviews must be finalised, and (c) declaring that a failure to finalise a review within that time is taken to be a confirmation of the determination or decision subject to review, and (d) providing for the process for making applications for, and the conduct and procedure of, reviews, and (e) setting fees payable for reviews, and (f) setting the period within which a request for a review under section 8.2(1)(c) must be made. (2) The functions of a consent authority in relation to a matter subject to review under this Division are the same as the functions in connection with the original application or determination. (3) If a decision to reject an application for development consent is changed on review, the application is taken to have been lodged on the date the decision is made on the review. (4) If a determination is changed on review, the changed determination replaces the earlier determination on the date the decision made on the review is registered on the NSW planning portal. (5) Notice of a decision on a review to grant or vary development consent is to specify the date from which the consent (or the consent as varied) operates. (6) A decision after the conduct of a review is taken for all purposes to be the decision of the consent authority. (7) If on a review of a determination the consent authority grants development consent, modifies a development consent or varies the conditions of a development consent, the consent authority is entitled (with the consent of the applicant and without prejudice to costs) to have an appeal against the determination made by the applicant to the Court under this Part withdrawn at any time prior to the determination of that appeal. s 8.5: Ins 2017 No 60, Sch 8.1 [2]. Am 2025 No 71, Sch 1[130] [131]. Division 8.3 Appeals—development consents div 8.3: Ins 2017 No 60, Sch 8.1 [2]. 8.6 Decisions subject to appeal to Court under this Division (cf previous s 23F) (1) A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is (if this Division so provides) subject to appeal to the Court under this Division. (2) A decision subject to appeal includes a decision made after a review under Division 8.2. (3) There is no right of appeal under this Division against the following decisions— (a) a decision of the Independent Planning Commission as consent authority under this Act in relation to the carrying out of any development that is made after a public hearing by the Commission into the carrying out of that development, (b) the determination of, or a failure to determine, an application for a complying development certificate. Note. See other restrictions in this Act on the power of the Court to vary conditions of development consent relating to development contributions. ss 8.6, 8.7: Ins 2017 No 60, Sch 8.1 [2]. 8.7 Appeal by applicant—applications for development consent (cf previous s 97) (1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. (2) For the purposes of this section, the determination of an application by a consent authority includes— (a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or (b) any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate. (3) An appeal under this section relating to an application for development consent to carry out designated development in respect of which an objector may appeal under this Division cannot be heard until after the expiration of the period within which the objector may appeal to the Court. ss 8.6, 8.7: Ins 2017 No 60, Sch 8.1 [2]. 8.8 Appeal by an objector—designated development applications (cf previous s 98) (1) This section applies to the determination of an application for development consent for designated development (including any State significant development that would be designated development but for section 4.10(2)), being a determination to grant development consent, either unconditionally or subject to conditions. (2) A person who duly made a submission by way of objection during the public exhibition of the application for development consent (an objector ) and who is dissatisfied with the determination of the consent authority to grant consent may appeal to the Court against the determination. s 8.8: Ins 2017 No 60, Sch 8.1 [2]. Am 2018 No 25, Sch 4 [34]. 8.9 Appeal by applicant—modifications of development consent (cf previous s 97AA) An applicant for the modification of a development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. s 8.9: Ins 2017 No 60, Sch 8.1 [2]. 8.9A Appeal may not be made during review An appeal under this division against a determination or decision must not be made during the period— (a) beginning on the lodgement of a request for a review of the determination or decision under Division 8.2, and (b) ending on the confirmation or change of the determination or decision under section 8.4, the expiry of the period set under section 8.5(1)(b) or the withdrawal of the request by the applicant. s 8.9A: Ins 2025 No 71, Sch 1[132]. 8.10 Time within which appeals may be made (1) An appeal under this division by an applicant for development consent, or for a modification of a development consent, who is dissatisfied with the determination of the application by the consent authority must be made within 6 months after the date the determination is notified or registered on the NSW planning portal. (2) An appeal under this division by an applicant for development consent, or for a modification of a development consent, against a deemed refusal under section 8.11 may be made at any time— (a) after the expiry of the period prescribed by the regulations for the determination of the application for development consent or the modification of the development consent, and (b) before the consent authority determines the application for development consent or the modification of the development consent. (3) An appeal under this division by an objector may be made only within 28 days after the date the objector is notified of the decision appealed against. (4) In calculating the period within which an appeal may be made to the Court against a determination or decision referred to in section 8.2(1)(a) or (b), the period referred to in section 8.9A must be disregarded. s 8.10: Ins 2017 No 60, Sch 8.1 [2]. Subst 2020 No 5, Sch 1.11[7]. Am 2025 No 71, Sch 1[133]. 8.11 Circumstances in which consent taken to have been refused for purposes of appeal rights (cf previous s 82) (1) A consent authority that has not determined an application for development consent (or for the modification of a development consent) within the period prescribed by the regulations for the determination of the application is, for the purpose only of this Division, taken to have determined the application by refusing development consent (or refusing to modify development consent) when that period ends. (2) Subsection (1) does not prevent a consent authority from determining an application after the end of that period. (3) Any such determination of an application does not affect the continuation or determination of an appeal made under this Division against the deemed refusal of consent (or modification of consent) under subsection (1). (4) If any such determination of an application results in the grant of development consent (or the modification of development consent), the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have the appeal withdrawn at any time prior to the determination of the appeal. ss 8.11–8.15: Ins 2017 No 60, Sch 8.1 [2]. 8.12 Notice of appeals to be given and right to be heard (cf previous s 97A) (1) The following are entitled to be given notice of an appeal made under this Division— (a) an objector, in the case of an appeal by an applicant concerning an application for development consent in respect of which the objector has a right of appeal under this Division, (b) an applicant for development consent and the consent authority, in the case of an appeal under this Division by an objector concerning the application for development consent, (c) a Minister or public authority, in the case of an appeal concerning an application for development consent in respect of which the concurrence of the Minister or public authority is required under this Act, (d) the relevant approval body (within the meaning of Division 4.8), in the case of an application for development consent that involves the approval body. (2) Any such notice of appeal is to be given by the relevant consent authority. (3) Anyone who is given any such notice of appeal is, on application to the Court within 28 days after the notice is given, entitled to be heard at the hearing of the appeal if not already a party to the proceedings. (4) In this section, a reference to an application for development consent includes an application to modify a development consent. ss 8.11–8.15: Ins 2017 No 60, Sch 8.1 [2]. 8.13 Effect of appeals on operation of consents (cf previous s 83(2)–(5)) (1) If the granting of a development consent for development (other than State significant development) is the subject of an appeal made under this Division, the development consent ceases to have effect. (2) If an appeal under this Division is discontinued, the consent is revived on the discontinuation of the appeal. (3) A development consent that is granted as a result of a decision on an appeal under this Division is taken to be a development consent duly granted under Part 4. Any such development consent takes effect, subject to any order of the Court, on and from the date the decision is registered on the NSW planning portal. (4) If the effect of a decision on appeal is that development consent is refused, any development consent granted ceases to have effect. (5) Despite anything to the contrary in this section, a development consent is taken to have effect on and from the date fixed by— (a) a court (whether or not the Land and Environment Court) that finally determines an appeal on a question of law which confirms the validity of, or results in the granting of, the development consent, or (b) the Land and Environment Court, if the validity of a development consent granted by that Court is confirmed by, or the development consent is granted by that Court as a result of, such a final determination made by another court that has not fixed that date. ss 8.11–8.15: Ins 2017 No 60, Sch 8.1 [2]. 8.14 Powers of Court on appeals (cf previous s 39(6A) Land and Environment Court Act) (1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (2) The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly. (3) If the consent authority was under this Act required to consult or obtain the concurrence of another person or body before making the decision the subject of an appeal under this Division— (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence has been granted, and (b) in a case where the concurrence has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. (4) If an appeal under this Division relates to integrated development— (a) the Court may determine the appeal whether or not the consent authority has obtained general terms of approval from each relevant approval body, and (b) the Court is not bound to refuse an application for development consent because a relevant approval body has decided that general terms of approval will not be determined or has decided not to grant a relevant approval, and (c) the Court may determine an appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of a relevant approval body. ss 8.11–8.15: Ins 2017 No 60, Sch 8.1 [2]. 8.15 Miscellaneous provisions relating to appeals under this Division (cf previous s 97B; s 39A Land and Environment Court Act) (1) Separate appeals under this Division with respect to the determination of an application for development consent are, as far as practicable, to be heard together. (2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion— (a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or (b) that— (i) it is in the interests of justice, or (ii) it is in the public interest, that the person be joined as a party to the appeal. (3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies. (4) If the determination or decision appealed against under this Division was made by a Sydney district or regional planning panel or a local planning panel, the council for the area concerned is to be the respondent to the appeal but is subject to the control and direction of the panel in connection with the conduct of the appeal. The council is to give notice of the appeal to the panel. (5) If the Minister exercised the functions of the council as consent authority (for Crown development) in respect of a determination or decision appealed against under this Division, the council is to be the respondent to the appeal but is subject to the control and direction of the Minister in connection with the conduct of the appeal. The council is to give notice of the appeal to the Minister. ss 8.11–8.15: Ins 2017 No 60, Sch 8.1 [2]. Division 8.4 Appeals—building and subdivision certification divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.16 Appeals against failure or refusal to issue certificate under Part 6 (cf previous s 109K(1)–(2)) (1) An appeal may be made to the Court against the following decisions of a council under Part 6— (a) a decision to refuse to issue a construction certificate, occupation certificate, subdivision works certificate or subdivision certificate, (b) a decision to issue any such certificate subject to conditions. (2) The appeal may be made by the applicant for the certificate concerned. (3) An appeal may be made only within 6 months after the date on which the decision was made. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.17 Deemed refusal for purposes of appeal (cf previous s 109K(3)) (1) For the purposes only of an appeal under this Division, a council is taken to have made a decision to refuse to issue a certificate (a deemed refusal ) if it has failed to issue the certificate to the applicant within the period prescribed by the regulations. (2) Nothing in subsection (1) prevents a council from determining an application for a construction certificate, occupation certificate, subdivision works certificate or subdivision certificate after the expiration of the applicable period specified in that subsection. (3) A determination made after the expiration of that applicable period does not affect the continuance or determination of an appeal made under this Division in respect of a deemed refusal. (4) If a determination is made after the applicable period to grant the certificate concerned, the council is entitled, with the consent of the applicant and without prejudice to costs, to have any appeal under this Division against a deemed refusal withdrawn at any time prior to the determination of that appeal. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. Division 8.5 Appeals—development control orders divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.18 Appeals concerning orders (cf previous s 121ZK) (1) A person who is given a development control order may appeal to the Court against the order. (2) However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises). (3) The appeal may be made only— (a) within 28 days after the development control order is given to the person, or (b) if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person. (4) On hearing an appeal, the Court may— (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.19 Awarding of compensation concerning orders (cf previous s 121ZL) (1) The Court, on the hearing of an appeal or otherwise, has a discretion to award compensation to a person to whom a development control order is given for any expense incurred by the person as a consequence of the order, including the cost of any investigative work or reinstatement carried out by the person as a consequence of the order. (2) Compensation is to be awarded only if the person seeking the compensation satisfies the Court that the giving of the development control order was unsubstantiated or the terms of the order were unreasonable. (3) A claim for compensation cannot be made more than 28 days after the date on which the Court gives its decision on the appeal or more than 3 months after the date of the development control order if an appeal is not made against the order. (4) Compensation under this section is to be awarded against the relevant enforcement authority who gave the development control order. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.20 Effect of appeal on order (cf previous s 121ZN) If an appeal is duly made to the Court against a development control order, the appeal does not effect a stay of the order. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. Division 8.6 Appeals—miscellaneous divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.21 Appeal concerning decisions on security for development requirements or damage (cf previous s 98A) (1) This section applies in connection with a decision of a consent authority or council relating to security of the kind referred to in section 4.17(6). (2) The applicant for development consent to which the security relates, or a person having the benefit of the consent, who is dissatisfied with the decision may appeal to the Court as follows— (a) an appeal may be made against a decision of the consent authority with respect to the provision of the security (otherwise than by the imposition of a condition of development consent), (b) an appeal may be made against the failure or refusal of the consent authority to release a security held by it, (c) an appeal may be made against the failure or refusal of a council to release a security held by it that has been provided in accordance with a condition of a complying development certificate. (3) An appeal under subsection (2)(a) may be made only within 6 months after the applicant for development consent received notice of the decision. (4) An appeal under subsection (2)(b) or (c) may be made only— (a) except as provided by paragraph (b), within 6 months after the work to which the security relates has been completed, or (b) if the security is provided in respect of contingencies that may arise on or after completion of the work to which the security relates, not earlier than 6 months and not later than 12 months after the completion of the work. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.22 Appeals against refusal to extend consent lapsing period (cf previous s 95A(3)) (1) This section applies to an application under section 4.54 for the extension of the period after which a development consent lapses. (2) The applicant for the extension who is dissatisfied with the determination of the application, or the failure of the consent authority to determine the application within the period prescribed by the regulations, may appeal to the Court. (3) The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against or the end of the deemed refusal period referred to in subsection (2). divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.23 Appeals against revocation or modification of development consent (cf previous s 96A(5)) (1) This section applies to a decision of the Planning Secretary or a council under section 4.57 to revoke or modify a development consent. (2) The applicant for the consent, or any other person entitled to rely on the consent, may appeal to the Court against the revocation or modification of the consent. (3) The appeal can only be made within 3 months after the date on which the revocation or modification of the consent takes effect. (4) On hearing the appeal, the Court may— (a) confirm the revocation or modification, or (b) vary the revocation or modification, or (c) cancel the revocation or modification. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.24 Appeals concerning compliance cost notices (cf previous s 121ZKA) (1) A person on whom a compliance cost notice is served under Part 12 of Schedule 5 (Development control orders) may appeal against the notice to the Court within 28 days after the service of the notice on the person. (2) If an appeal is lodged against an order in relation to which a compliance cost notice has been issued— (a) an appeal may be lodged against the compliance cost notice in the same way as, and at the same time as, the appeal against the development control order concerned, and (b) the Court may deal with the appeal against the compliance cost notice at the same time as it deals with the appeal against the development control order. (3) On hearing an appeal against a compliance cost notice, the Court may— (a) revoke the notice, or (b) modify the notice, or (c) make any other order with respect to the notice as the Court thinks fit. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.25 Appeals with respect to building information certificates (cf previous s 149F) (1) An applicant— (a) who is dissatisfied with a council’s refusal to issue a building information certificate under Part 6, or (b) who is dissatisfied with a council’s failure to issue a building information certificate within the period prescribed by the regulations, or (c) who is dissatisfied with a notice from the council to supply information in connection with an application for a building information certificate, may appeal to the Court. (2) The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against or the end of the deemed refusal period referred to in subsection (1). (3) On hearing the appeal, the Court may do any one or more of the following— (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2]. 8.26 Regulations (cf previous s 105(1)(p1)(t)) The regulations may make provision for or with respect to reviews and appeals under this Part, and in particular the procedure with respect to any such review or appeal. divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2].