What if Council refuses your development application?
While we hear a lot about planning approvals, if you do find yourself in a situation where the Council has refused a development application you, as the applicant, are provided with the opportunity to appeal Council’s refusal to the Planning and Environment Court.
What is the process?
Usually the appeal process involves a lawyer, town planning expert, as well as any other expert that is required depending on the council’s reasons for refusing the development application. These reasons are given as part of the decision that council issues. The reasons are directly tied to the relevant planning legislation (planning codes).
The first step is the formal notice lodged to the Planning and Environment Court. This must be done within 20 business days of the decision being issued. This is called a Notice of Appeal and clearly identifies what you are appealing. While most commonly this notice is prepared by a lawyer, it is possible to lodge a notice of appeal as an individual. As this document sets the scene for the appeal and includes the grounds of the appeal (i.e. why Council’s refusal should be overturned) it is recommended that it be prepared by a lawyer who frequently acts in the Planning and Environment Court. Not all lawyers have experience in this field as it is a particular specialisation.
The person who appeals the decision is the appellant. The Council, or party who made the decision is called the respondent as they are responding to the appeal. There is then the opportunity for others to join the appeal as co-respondents or co-respondents by election. This terminology can be confusing and you don’t need to focus on this too much. We are mentioning them only because it forms part of the process.
The appeal process then follows a formal structure. This is established by dates that are set out in orders. Orders are prepared by the lawyers (typically) that the judge either agrees to or does not agree to. They are made before the judge, meaning they are presented to them and they agree, disagree, or propose changes. The appeal follows the timeline set out in the order.
Alterations can be made to the timing and usually made at particular intervals in the process. These intervals are called “reviews”. These reviews also occur before the judge at the Planning and Environment Court.
As part of the appeal process you (or more likely your experts) will provide their expert opinion (usually through a series of meetings and/or reports) to determine whether a resolution can be made prior to a formal hearing. These meetings are called a mediation or without prejudice conferences. If the experts cannot come to an agreement regarding compliance with the codes, then the appeal will proceed to a full hearing before a judge who acts in the Planning and Environment Court. Both sides will present their case, all experts will be cross-examined and their opinions tested. At the end, the judge will consider all expert reports prepared and the testimony of the experts heard during the hearing.
When the judge has made their decision (this could be on the spot or after a few weeks/months) they will hand down their decision including reasons why they made their decision.
How much does it cost to appeal a Planning decision?
The appeal process can be lengthy and costly, but it may result in an overturning of council’s refusal. In some cases it may be that Council agrees to overturn their decision during the first meeting. At that point it may be that the costs are limited to $15,000-$30,000, depending on the number of experts required and the extent of work required by them in terms of preparation and review of documents to get them to that point.
As you get further down the track closer to a full hearing, the costs will increase depending on the amount of work required to be carried out by the lawyers and experts. Typically some of the most expensive points are the preparation of joint reports (a report prepared by all experts in the one field – eg. planning), and then the full hearing. If your appeal goes to a full hearing, it will typically cost a significant amount of money. In particular for those appeals where there are a large number of experts (traffic, engineering, ecology, planning).
There are opportunities for the you to withdraw from the appeal. Depending on when you withdraw there may be risks of having to pay the costs for the other side’s expenses for the appeal. This will usually only be where it is determined that you continued the appeal where there was very little chance that you would succeed. For example if your experts advise that they agree with Council’s experts, and subsequently Council’s decision, and you still continue the appeal despite this expert advice, then it could be that you are seen to have acted unreasonably in continuing the appeal. To limit the possibility of this occurring, we recommend asking your lawyer what the risks are for this to occur so that you remain informed at all times.
If you are in the position where you are deciding whether or not to appeal council’s decision, it is strongly recommended that first you speak with a town planner, planning and environment lawyer, and the other relevant experts who will be needed. They should be able to provide you with information on the likelihood of success in the appeal process and can provide you with an estimate of costs so that you can make an informed decision. You should listen to these experts to determine whether or not it is worth (financially) appealing the decision.