It is disappointing to spend so much time and money preparing a development application only to have it refused. It is important to know you have options – which option is best for you will predominantly depend on what your application was for and the reasons the Council has given for the refusal, which it should inform you of in writing.
One option might be to appeal the decision by commencing proceedings in the Land and Environment Court. Last month, we helped a client successfully appeal the Council’s refusal of his development application – this article explains what we did and why it worked.
About our client’s development application
Our client lodged a development application with his local council seeking approval to remove and replace an existing set of stairs and walkways which provided access to the foreshore below their property. The Council refused to grant approval of the development application. In response, our client commenced a Class 1 appeal in the Land and Environment Court.
Eventually, the parties attended a conciliation hearing as directed by the Court. This is not an unusual step for the parties to take in these types of appeals. Pursuant to section 34(a) of the Land and Environment Court Act 1979 (NSW), the Court: may arrange a conciliation conference between the parties or their representatives, with or without their consent. If the Court makes an order requiring the parties to participate in a conciliation conference, the parties must participate in that process in good faith – i.e. make a genuine effort to reach a resolution between themselves instead of progressing to a full Hearing. If the parties can agree on the terms of a decision that resolves the matter and which the Court could have made in the proper exercise of its functions, the parties inform the Commissioner. The Commissioner must dispose of the proceedings in accordance with the decision agreed on by the parties and set out in writing the terms of that decision.
Fortunately, our client and the Council were able to agree on the terms of a decision. This meant our client was able to replace the stairs at his property on terms the Council was happy with, and both parties were spared the additional cost, inconvenience and uncertainty of progressing to a full Hearing. You can access a copy of the full judgment here.
Do you need help exploring your options?
Acting as the appellant in Land and Environment Court proceedings can be complex and demanding. Although you can represent yourself, your prospects of success may be improved by engaging a lawyer to act as your representative and help you navigate the process. To find out more about how we can help you, call Jessica Kinny on 02 9199 4563. We would be delighted to help you.
This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you. Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.