Under the Environmental Planning & Assessment Act 1979 (EP&A Act), decisions on development applications (DAs) for State significant development are subject to review and appeal.
Judicial review
Under Section 9.45 of the EP&A Act, any person may commence proceedings in the Land and Environment Court seeking an order to remedy or restrain a breach of the Act, including any decision on a DA for State significant development.
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
In some cases, applicants and third-party objectors may appeal to the Land and Environment Court against the merits of a decision on a DA for State significant development.
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 DA for State significant development, and third-party objectors have 28 days. However, third-party objector merit appeal rights only apply if the development meets the relevant criteria for designated development.
When the Independent Planning Commission holds a public hearing prior to determining a DA for State significant development no-one can appeal against the merits of the decision.
Merit reviews
Under Division 8.2 of the EP&A Act, an applicant may request a review of the merits of the determination of a DA for State significant development if it was determined under delegation by department 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 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).
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 State significant development within 90 days.
These appeals are heard on their merits.
Notwithstanding the appeal, the consent authority may still determine the DA.