Essential Guide

Essential Guide: Stopping the Clock

WRITTEN BY Victoria McGinness

Class 1 appeals dominate the case load of the Land and Environment Court. Many of these proceedings are commenced against the ‘deemed refusal’ of a development application. This occurs when the consent authority fails to determine the application within the assessment period prescribed by the Environmental Planning and Assessment Act 1979 (the Act) and the Environmental Planning and Assessment Regulation 2021 (the Regulation). It is therefore important that applicants and consent authorities understand the correct approach to calculating when a ‘deemed refusal’ will occur, and also know how to extend the development assessment period where necessary. This essential guide will look at when the development assessment clock stops and what events will restart it.

When does the assessment period start and end?

Under the Regulation, consent authorities have a specified number of days to determine a development application, depending on what type of application it is.[1] This is known as the “assessment period”. ‘Days’ in this context means all days – not just business days.

The assessment periods are:

  • 60 days for designated development, integrated development, development requiring concurrence, or development that proposes to reduce the number of biodiversity credits required to be retired under the Biodiversity Conservation Act 2016.
  • 90 days for a development application for State significant development.
  • 40 days for all other development applications.[2]

The assessment period for certain types of development is increased by the number of days by which the public exhibition period for the development application exceeds the minimum period required under the Act.[3]

If the consent authority does not determine the application within the assessment period, then the application is deemed to have been refused.[4] The applicant then has the right to seek review of that decision in the NSW Land and Environment Court within six months of that date.[5]

The assessment period for a development application generally commences on the day on which the development application is “lodged”.[6] A development application is “lodged”—

(a)  on the day on which the fees payable for the development application under the Regulation are paid, or

(b)  if the applicant is notified that no fee is required—on the day the application was submitted on the NSW planning portal.[7]

Under s.36 of the Interpretation Act, if, in an instrument prescribes a period of time from a particular event, the time is reckoned exclusive of that day or of the day of that act or event. As such, the day of payment or submission on the Portal is not included in the assessment period.

A consent authority is able to reject a development application within 14 days after receiving the application if it doesn’t meet certain requirements. For example, if the application is illegible or unclear, or does not contain the information and documents that are required.[8] If the application is rejected, it is taken to have never been made.[9]

What stops the clock?

The assessment period ‘clock’ can be stopped by:

  1. The consent authority, concurrence authority or approvals body issuing a request for additional information in accordance with the Act and Regulation; or
  2. The applicant amending the development application within the assessment period, where the amended application is accepted by the consent authority.

How these two processes operate to stop the assessment clock is set out below.

Additional information requests

It is common during the development assessment process for a decision maker to require additional information in order to properly consider an application. The assessment ‘clock’ can be ‘stopped’ if:

  1. the consent authority makes a request for additional information under section 36 of the Regulation within 25 days from the start of the assessment period;[10] and
  2. a concurrence authority or approval body makes a request for additional information, within 25 days of the date the authority received the request for concurrence or approval from the consent authority.[11]

If the consent authority asks for additional information in this period then the assessment period clock stops on the day of the request. If a concurrence or approval body makes the request, then the assessment clock stops on the day that the consent authority receives the request from the concurrence or approval body. If more than one request for additional information is made while the assessment clock is stopped then the clock stays stopped until all requests have been addressed.

The assessment clock can also be stopped if, in relation to integrated development which requires an Aboriginal heritage impact permit under the National Parks and Wildlife Act 1974, a period of Aboriginal community consultation is required and the consultation commences within 25 days after the date on which the development application is forwarded to the Secretary of the Office of Environment and Heritage.[12] In this case the clock is paused for the consultation period, provided this is not longer than 46 days from the date on which the development application was lodged with the consent authority.

To be effective, the request for additional information must:

  • be made through the Planning Panel
  • specify a reasonable period within which the additional information must be given to the consent authority, and
  • specify the number of days in the assessment period that have elapsed, and
  • inform the applicant that the assessment period ceases to run during the period between the request, and the day on which the applicant provides the additional information or notifies, or is taken to have notified, the consent authority that the information will not be provided.[13]

An authority can ask for additional information outside the 25-day period described above; however, this will not have the effect of ‘stopping the clock’ and will not extend the assessment period or delay the deemed refusal date.

When does the ‘clock’ restart?

The assessment period clock restarts when the applicant:[14]

  • gives the information requested to the consent authority, or
  • notifies the consent authority (in writing) that the information will not be provided; or
  • does not give the information in the reasonable period specified in the notice, or any further period of time which is allowed by the authority.

If the request for additional information came from a concurrence authority or referral body, then the assessment clock restarts on the earlier of—

  • the day on which the consent authority gives the information to the concurrence authority or approval body, or
  • the day on which the consent authority gives, or is taken to have given, written notice to the concurrence authority or approval body that the information will not be given.

To determine whether there has been a deemed refusal, it may therefore be necessary for an applicant to confirm when information is given by a Council to another body.

It may also be difficult to work out whether the clocks have restarted where:

  1. the applicant has provided some, but not all of the additional information required, or the information provided is inadequate; or
  2. the consent authority informally extends the time period in which the information is required to be provided.

When identifying when the assessment period ends, it is also important to remember that s 36 of the Interpretation Act 1987 prevents any assessment period from ending on a Saturday, Sunday, or public holiday. In these cases, the next working day is taken to be the last day of the assessment period.

When the additional information is inadequate

If the information provided in response to a request for additional information is inadequate, or if further additional information is required, the consent authority can stop the assessment ‘clock’ again and request further information. If the new request is made within the relevant 25-day period then this subsequent request can also ‘stop the clock’. In calculating the 25-day period in which any subsequent request for additional information may be made, any days for which the assessment clock has already been stopped are not counted.

When the period for the provision of information is deemed to have been extended

As noted above, if an applicant does not provide the information within the time specified in the request for additional information/the stop the clock notice, then the clock will generally restart after that date has passed. However, the time for the provision of the additional information can be deemed to have been extended by the authority in certain circumstances.

This situation arose in Corbett Constructions P/L v Wollondilly Shire Council [2017] NSWLEC 135. In that case, the Council had asked the applicant to provide a substantial amount of additional information within 28 days in relation to a development application for a large medium-density residential development. After the deadline had passed, an exchange of emails took place between the applicant and the Council in which the applicant indicated that the additional information would be provided ‘in the coming weeks’ and the Council acknowledged and appeared to accept the delay. The Land and Environment Court found that the Council’s actions effectively amounted to an implied extension of time for the provision of the additional information, thus delaying the restarting of the assessment clock and the date on which the 6-month appeal period started. To avoid this uncertainty, any extensions of time for the provision of the additional information should be given formally in writing by the Council and expressly state that the stop the clock provisions remain in effect.

Amending a development application

Amending a development application can also have the effect of resetting the ‘clock’ for the assessment period.

Under section 38 of the Regulation, an applicant can apply to the consent authority to amend their development application.  If the consent authority approves the amendment, the development application is taken to be lodged (including for the purpose of the amendment period) on the day on which the applicant applied for the amendment if the consent authority:

  • considers the amendment not to be minor, and
  • notifies the applicant, through the NSW planning portal, that the later day applies.

Conclusion

It is important for a development applicant and consent authority to know the date when an application must be determined or will otherwise be deemed to be refused. To be able to do this it is necessary to consider whether, when and for how long the assessment clock was ‘stopped’ in accordance with the principles set out above.

For further information about, or assistance with a development application, please contact Alice Menyhart, Andrew Brickhill or Victoria McGinness from the Local Government & Planning team.

We acknowledge that the content contained in this guide is, of course, general commentary only. It is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.

Please note that the law detailed in this Essential Guide is correct as at May 2024.

Our series of Essential Guides are comprehensive yet simple to understand guides on how to deal with certain legislation and problems that Local Government and Councils often face.


[1] Section 91 of the Regulation.

[2] Other than a Crown development application referred to in section 95.

[3] Section 93 of the Regulation.

[4] Section 8.11 of the Act.

[5] Subject to certain exceptions made in relation to the covid pandemic: s.8.10 of the Act.

[6] Section 92 of the Regulation, if a public hearing is conducted by the Independent Planning Commission into a development or part of a development, the assessment period for the development application commences on the day on which the Independent Planning Commission’s final report is published on the NSW planning portal, as required under the Act, Schedule 2, clause 6.

[7] Section 24(3) of the Regulation.

[8] Section 39(1) of the Regulation.

[9] Section 39(2) of the Regulation.

[10] Sections 94(2) and (3) of the Regulation.

[11] Section 94(6) of the Regulation.

[12] Section 94(4) of the Regulation.

[13] Section 36(3) of the Regulation.

[14] Sections 94(2) and 36(5) of the Regulation.

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