If your development application (DA) has been refused by your local council, you might be considering an appeal to the Land & Environment Court (LEC). This article explains what to expect if you're involved in a Class 1 residential development appeal—one that deals specifically with local planning and council decisions on home projects.
Before you start anything, it’s essential to seek legal advice. At Harriss Jones Lawyers, we offer a free 30-minute consultation where one of our solicitors will help you understand how your case might unfold. These articles are useful for general awareness but aren’t a substitute for legal advice. Every development is unique, and tailored legal guidance is crucial.
After your consultation, your solicitor will advise whether it’s worthwhile to proceed. While they can provide an indication of your likelihood of success, keep in mind that outcomes in court can be unpredictable. Much depends on how flexible you’re willing to be with your design, especially in relation to your council’s Local Environmental Plan (LEP) and Development Control Plan (DCP). Legal professionals often work closely with your architect, draftsperson, and town planner to ensure the legal advice is relevant to your specific design and planning documents.
Once you decide to move forward, your solicitor will file the appeal and serve it to the local council within three business days. Filing a case in the LEC comes with costs, which are based on your project’s value. For example, if the estimated cost of your development is over $1 million, the current filing fee is $6,728.
After your appeal is lodged and the council has appointed their solicitor and acknowledged your claim, the court will schedule a directions hearing—also called a first return date—usually within 21 days of filing. In limited cases, this can be delayed. Before this hearing, both sides are expected to agree on key dates. These include when to hold a conciliation meeting, when expert reports need to be completed, and whether any party intends to present expert evidence. If these details are finalised beforehand, your solicitor may file consent orders, which can make attending the first return date unnecessary.
One of the major milestones at this stage is the Statement of Facts and Contentions (SoFAC). This is the council’s formal response outlining the reasons your DA was refused. They are only allowed to address issues already raised in the original refusal. New concerns cannot be introduced. You’ll also have the opportunity to reply to the SoFAC, but this is not a time to submit additional reports or evidence unless you’ve received the Court’s permission. Your solicitor will usually prepare this reply, working closely with your architect and planner to ensure it’s accurate and aligned with the technical side of your project.
After these documents are exchanged, your town planner will take the lead in working with your architect or draftsperson to review the issues raised and adjust your plans where possible. These amendments aim to reduce the number of disputed items. If you’re happy with the updated design, your solicitor will ask the Court to accept the amended plans. Typically, the council won’t oppose this request, though they will usually submit an updated SoFAC in response, and you’ll be able to respond to that again.
During this time, the experts on both sides will also be in discussions. They’ll review the amended plans and prepare a joint expert report that clearly outlines where they agree or disagree. Where there is disagreement, the report must explain why. Solicitors don’t participate in this process, nor do they assist in drafting the report. It isn’t their role to argue for or against your project’s approval at this stage. Instead, this report helps the Commissioner understand the technical aspects of the dispute and sets the stage for the conciliation process.
If things go well, the next step is conciliation—often the best opportunity to reach an agreement. These meetings, referred to as Section 34 or Section 34AA conferences, are a key part of the appeal process. In fact, 77% of Class 1 appeals were resolved through conciliation in 2022. That’s a strong reason to take this part seriously, as it can save you the cost and stress of preparing for and attending a hearing. Conciliation usually takes place over two days. The first day includes a site visit, giving the Commissioner a chance to see your proposed development location and begin discussions. The second day is generally spent reviewing proposed changes and negotiating with the council.
The DCP allows for some flexibility, and councils can show discretion if you’re also prepared to negotiate in good faith. Note that neighbours are allowed to attend the onsite conciliation, and the Commissioner may ask them for their views.
If conciliation doesn’t resolve all the issues but the parties are close to agreement, the Commissioner may grant more time for continued negotiations. However, if no resolution is reached, your case will proceed to a hearing. At this stage, your solicitor may recommend engaging a barrister, which will increase the cost of your case. Barristers are highly experienced and helpful, especially in more complex hearings.
When a hearing is scheduled, it becomes your final chance to submit expert evidence or revised plans. After the hearing, the Commissioner will make a final decision. If the result isn’t in your favour, you can appeal to the NSW Court of Appeal, though this is usually a challenging and costly path.
It’s important to remember that even with a positive legal opinion at the outset, litigation outcomes in the LEC can’t be guaranteed. This makes the conciliation process all the more valuable, it gives you the best chance of resolving the matter quickly and with fewer expenses.
If you’re unsure about your DA refusal or want to explore your legal options, give us a call. Book your free 30-minute consultation with Harriss Jones Lawyers and take the first step toward understanding your path forward.
