Under the Environmental Planning & Assessment Act 1979 (EP&A Act), decisions on State significant development applications (DAs) are subject review and appeal.
Under Section 9.45 of the EP&A Act, any person may commence proceedings in Land and Environment Court seeking an order to remedy or restrain a breach of the Act, including any decision on a State significant DA.
Judicial review proceedings are heard by judges and consider the legality or validity, not the merits, of the decision. They may focus on the determination of the application as well as the steps leading to the determination of the application.
Any person may commence these proceedings within 3 months of the public notice of the determination of the application.
In some cases, applicants and third-party objectors may appeal to the Land and Environment Court against the merits of a decision on a State significant DA.
These proceedings are generally heard by commissioners of the Court, but may sometimes be heard by judges, and involve remaking the original decision.
Under Division 8.3 of the EP&A Act, an applicant has 6 months to lodge a merit appeal against the merits of the determination of a State significant DA, and third-party objectors have 28 days. However, third-party objector merit appeal rights only apply if the SSD project meets the relevant criteria for designated development.
When the Independent Planning Commission holds a public hearing prior to determining a State significant DA no-one can appeal against the merits of the decision.
Under Division 8.2 of the EP&A Act, an applicant may request a review of the merits of the determination of a State significant DA if it was determined under delegation by Departmental staff (excluding the Planning Secretary).
In requesting a review, an applicant may also amend the DA provided the amended DA is substantially the same as the determined DA.
The Independent Planning Commission, or more senior officer of the Department, will undertake the review, and must evaluate the matters set out in Section 4.15 of the EP&A Act.
Decisions following a merit review are subject to merit appeal rights (provided these rights apply to the DA).
Deemed Refusal Appeals
Under Section 8.11 of the EP&A Act, an applicant may appeal to the Land and Environment Court against the failure of a consent authority to determine a State significant DA, or the deemed refusal of the DA.
These appeals may be lodged within 90 days of the lodgement of the DA (see Division 11 of the EP&A Regulation for more information on how these days are counted) and are heard on their merits.
Notwithstanding the appeal, the consent authority may still determine the DA.