Development Applications (DA) can be complex. The requirements vary depending on your land’s location, applicable planning instruments such as Local Environmental Plans (LEPs) or Development Control Plans (DCPs), and state requirements such as the State Environmental Planning Policies (SEPPs). While your architect or designer will ensure all the applicable requirements of your land are met, sometimes mistakes can occur, or elements are overlooked during the design process.
Following submission of a DA, the local council has 60 days to provide you with a determination in respect of your application. While most might assume that there are only two options for the local council (to either approve the application or to refuse it), there is a third option available. Under section 40 of the Environmental Planning & Assessment Regulation 2021 (NSW), an applicant can withdraw an application for assessment and the local council can invite an applicant to withdraw.
In the event you are invited by the local council to withdraw your application, you will usually only have 1 week (5 business days) to make a decision or request the local council provide you with additional time to consider your options.
You should consider the following when deciding whether or not to withdraw:
Cost
The cost of your decision is paramount. You should think about the cost of the application (including the cost to have it prepared, the designs, the expert reports etc), the cost of what it will be to amend or rectify the plans and reports in order to resubmit a new application. If you elect not to withdraw, you should also consider the cost that given the local council is likely to refuse your application you will then need to appeal the decision in the Land & Environment Court of NSW in order to get an approval.
As a general rule, if the amendments required are minor, withdrawal and resubmission may be more cost-effective. However, if the local council’s concerns go to the heart of your design, the cost of appealing a refusal might be comparable to starting over.
Time
Time is a critical factor, and it will also have an impact on the costs. As time goes by, costs often rise, construction becomes more expensive, and materials can be harder to source or take longer to obtain if there is a high demand. This is often not something people consider when they design. In a world where we are increasingly in search of quick reward, designing and building your dream home takes time, money, and a significant amount of determination with some projects taking years from concept to finished build.
Litigation
Litigation will affect the time and most significantly the cost. If you are intending to dispute the local council’s decisions for refusal of your DA, you need to ensure you are ready to put aside the time as although the Land & Environment Court has a directive to ensure matters are quickly determined, timelines are not guaranteed.
If you decide to proceed to appeal, you should consider the following key questions:
· Do the grounds of refusal require a barrister?
· What expert reports will be required for joint conferencing with the council?
· Will your architect need to be available during conciliation for rapid design amendments?
While litigation can be expensive and stressful, many DAs are resolved through conciliation and do not proceed to hearing. The Land and Environment Court encourages an early resolution, and in many cases, the parties reach agreement before proceeding to trial. It is in the interests of all parties to resolve the dispute during conciliation.
Expert Advice
Your appointed architect or building designer can help you understand the implications of withdrawal. However, as they are not qualified to give legal advice, they may not be able to advise you whether litigation is appropriate. If you are considering proceeding to a potential refusal, you should seek legal advice and provide the solicitor with the local council’s Notice of Determination.
Once you have a perspective from both your architect and a solicitor, this will assist you in making the right choice based on what your circumstances are and the likelihood of success depending on the option you choose.
Design Control & Negotiation Outcomes
Finally, it is also important to consider is whether you will be satisfied with the outcome of either decision. If you withdraw, you may have to amend your plans and compromise on some of your design in order to satisfy the local council when you make the new application. When you withdraw, there is no opportunity to further negotiate with the local council and retain any elements of the design which is in dispute. This can sometimes mean you lose design choices you really want or that you had considered non-negotiables.
In the event that you proceed to appeal in court, you may retain those design elements, or during the conciliation process you may be able to find a middle ground with the local council which provides you with a better outcome than just removing something altogether.
For instance, if the local council raises concerns about bulk and scale from the addition of a second-storey addition, withdrawing to amend the design might allow you to preserve most of your vision. If the objection relates to fundamental non-compliance with height controls, proceeding to refusal and appealing may be your only path forward.
As with any major decision, being well-informed is essential. If you’d like to discuss your development application further, get in touch with our team today to make an appointment for a complimentary 30-minute appointment or use the form below to make an enquiry.
