Under the Environmental Planning & Assessment Act 1979 (EP&A Act), decisions on development applications (DAs) for state significant development (SSD) are subject to review and appeal.
Judicial review
All decisions on SSD applications are subject to judicial review proceedings in the Land and Environment Court under Section 9.45 of the EP&A Act.
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.
Merit appeals
An applicant can lodge an appeal against a determination with the NSW Land and Environment Court within 6 months of the decision.
Objectors can only lodge an appeal against the merits of an SSD determination when the development would otherwise have been designated development. The appeal must be made within 28 days of the notification of the decision.
These proceedings are generally heard by commissioners of the court, but may sometimes be heard by judges, and involve remaking the original decision.
You can’t lodge an appeal while a review under Division 8.2 of the EP&A Act is in progress (see below). The timeframe for submitting a merit appeal also pauses until the review is finished.
When the Independent Planning Commission holds a public hearing prior to determining an SSD application, no-one can appeal against the merits of the decision.
Review of decision
Under Division 8.2 of the EP&A Act, an applicant may request a review of the merits of an SSD determination. The review can be conducted internally by the Department, or we can refer the review to the Independent Planning Commission. An applicant may request a review of decision within 6 months of a decision being notified.
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 a 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).
A review cannot be requested where the court has disposed of an appeal against the determination or decision.
Assessment period
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 DA for SSD within 90 days.
These appeals are heard on their merits.
Notwithstanding the appeal, the consent authority may still determine the DA.