Who can make an objection to a DA and what is in an objection?
When a development application (DA) is lodged on the NSW Planning Panel, nearby property owners and any concurrent authorities are notified, so that they are aware of the DA and have opportunities to make submissions. Council’s own policy, council’s development control plan, and the local environmental plan provide guidance as to who is notified of such a DA. The property owners within the vicinity of the proposed DA, and/or anyone who has a submission to make, may provide one of the following responses:
- An objection;
- A request that modifications be made;
- A request that conditions be imposed; or
- Support for the DA.
A submission should consider the impacts of the DA on the local community and compliance. This may include, but is not limited to, comments on heritage significance to the development site or the local area, engineering, traffic and transport, the visual impact, environmental impacts, stormwater impacts, landscape and arboricultural impacts, urban design and acoustic. In accordance with section 4.15(e) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), council is to take into consideration the public interest, and any objections received in response from the DA will be considered by council when assessing the DA.
Can objectors still object if a DA is refused by council and is appealed?
In circumstances where a DA is refused by council, and where the applicant appeals that decision in the Land and Environment Court (LEC), the matter will be heard in the Class 1 jurisdiction of the LEC in accordance with the Land and Environment Court Act 1979 (NSW) (LEC Act). Once the proceedings are filed, and usually at the first return date, the LEC in its ordinary course will allocate a date for a section 34 conciliation conference (for non-residential appeals) or a section 34AA conciliation conference and hearing (for residential appeals) under the LEC Act.
Objectors to the DA should be notified of the conciliation conference date by the relevant Council and will be provided a copy of the Conciliation Conference Policy 2017 (Policy). If the objector wishes to speak at the conciliation conference, the objector must notify the council of this intention in accordance with the Policy. Council will then prepare a list of the objectors attending the conciliation conference, which will be filed with the LEC and served on the applicant prior to the hearing.
At the commencement of a s34/s34AA conciliation conference, the parties will usually meet at the site in the presence of a commissioner from the LEC, to identify the issues in dispute and to consider options in an endeavor to reach an agreement. The conciliation conference ordinarily commences with the parties introducing themselves to the commissioner at the site. The objectors who have notified the council of their intention to attend, typically then introduce themselves by providing their full names, addresses and a summary of their concerns of the DA to the commissioner. Any submission provided at this time should be presented in accordance with paragraphs 11 to 14 of the Policy. Once these the submissions are made, the confidential process of the section 34 or section 34AA commences and the objectors are invited to leave to allow this process to occur without their involvement.
Where any proceedings are not resolved at the s34 conciliation conference, the conciliation conference will be terminated by the LEC and the proceedings will be listed for hearing. Objectors are then notified of the hearing date and may have a further opportunity to speak at the commencement of the hearing in accordance with the Policy.
Section 34AA residential appeals are listed on two consecutive days. If the matter is not resolved on the first day during the conciliation conference, it will be terminated and the hearing will commence immediately thereafter and finalise on the second day. Thus, there is no further opportunity for objectors to contribute other than at the conciliation phase on the first day.
Can an applicant who is not a current owner make an application for a DA?
Councils often receive questions as to whether an applicant can file a DA or appeal in the LEC if he or she is not a current owner of the land. The applicant of a DA or LEC proceedings does not need to be the home or landowner. In accordance with section 23 of the Environmental Planning and Assessment Regulation 2021 (NSW), the applicant of a DA may be the owner of the land to which the DA relates or another person with consent of the owner of the land. Often it is a potential future owner, such as a developer, who is filing the DA or appealing the decision.
Can a council disagree with a decision that was already made by the precinct?
Community precincts provide the community’s opinion to a council. A key component of consultation of the community is through the community-based precinct forums, which allow property owners, residents, and workers to be involved in decisions that affect their local area. Any decisions made by a precinct are only advisory to Council, and while they play a vital role in considering the future of the local area, decisions of precincts are not binding to councils, and councils do not necessarily endorse those decisions.
Does a council have to notify objectors of any amendments to plans?
It is very common for amended plans to be proposed by an applicant in proceedings. These amended plans do not always need to be notified to the objectors. Some Councils may have a policy that requires them to provide the objectors with a copy of any amended plans, others may not require renotification. The conciliation process is confidential between the parties, and any amended plans provided by an applicant during proceedings are provided ‘without prejudice’.
Do objectors have access to a SOFAC and expert reports?
SOFAC
A Statement of Facts and Contentions (SOFAC) details the facts about a DA, and identifies the reasons for refusal of a DA. A council may provide a copy of the SOFAC to objectors when they are notified of Court dates, or they may be provided only on request.
Expert Reports
Objectors may request a copy of any expert reports. In usual circumstances, once expert reports are tendered and admitted as evidence in the proceedings, they can be provided to the objectors.
In Newcastle Muslim Association Incorporated v Newcastle City Council [2012] NSWLEC 20 Biscoe J in LEC considered the rights of objectors to access joint reports, and determined that council in that case was at liberty to provide a copy of the expert reports to persons who objected to the amended development application. The LEC did not consider whether leave is required, and the outcome of the case does not mean that expert reports are automatically provided to objectors. However, given that the decision to grant leave was based on the status of objectors in Class 1 appeals and the objects of the EPA Act, the case sets a precedent for leave being granted to provide an applicant’s reports to objectors, if that leave is required and is sought.
Can an objector appeal the approval of a DA?
Unless the development is declared to be designated development under s4.10 of the EPA Act, an objector cannot appeal against the merits of a decision to grant a development consent. An objector may only challenge a development consent where a council has failed to follow required procedures, such as failure to comply with notification requirements of its policy, or where the consent issued relates to development that is prohibited.
