How Fast is Your Council? Understanding DA Assessment Times and the New League Table

League Table & DA Assessment Times

The NSW Government has recently introduced a league table that ranks all NSW councils by the average number of days the council takes to determine a development application.  The Government’s intention is for the table to be updated and published daily.  The league table is accompanied by a ministerial order, known as the Environmental Planning and Assessment (Statement of Expectations) Order 2024, that sets expectations for the minimum period of time a council should accept lodgement of development applications through the portal and determine the application once lodged.

The council presently leading the competition is Georges River Council, with an average assessment time of 259 days.  North Sydney is coming a close second on 249 days.  These numbers are average days, so some development applications (DAs) take longer and some a shorter time to be determined.

The league table/expectations approach raises at least two key topics of conversation:

Is it quicker to go to the Land and Environment Court for a determination of your DA?

What happens if a council fails to meet expectations?

Following is my contribution to the conversation:

Is it Quicker to Go to Court?

If a DA remains undetermined after 40 days from the date of lodgement, the applicant has a right to lodge an appeal to the Land and Environment Court on the basis that the DA is “deemed” to be refused.  The application is not actually refused, and a council can still approve or refuse the application at a later date.  Once an appeal is lodged, the Court assumes the role of the council as the determining authority.

The Court has strict case management timeframes and procedures for the progress of an appeal.  Most of these procedures are set out in the Court’s Practice Note – Class 1 Development Appeals.  The Court also publishes on its website a range of future dates within which the Court expects hearings to take place.  In every appeal, there are common steps designed to identify the reasons for refusing the application, to encourage the parties to reach a conciliated agreement, and, if no agreement is reached, to ensure the appeal is ready to be heard.

Based on the Court’s case management procedures, an indicative timeframe can be identified for each step in the appeal process.  The table below lists the steps in a typical merit appeal and the number of weeks after lodgement of the appeal that each step might typically take.  More complex matters will require a longer timeframe.  Delays might also be caused by a party’s lack of resources, unavailability of experts, or the commissioners’ availability.  Furthermore, the procedural steps in the table below take into account that an applicant will apply to amend the development application after the conciliation conference.

The table above indicates that if parties to an appeal reach an agreement on the terms of approval during the conciliation (s34) stage of appeal, approval could be obtained within 14 weeks (98 days) after the appeal lodgement or 20 weeks (138 days) after the DA lodgement with the council. If no agreement is reached at the conciliation stage and the appeal proceeds to a contested hearing on the basis of amended plans, a development application can be determined within 36 weeks (252 days) after lodgement of the appeal of 40 weeks (292 days) after lodgement of the DA with the Council.

These figures suggest that it is not quicker. On average, to file an appeal in the Land and Environment Court, the average DA assessment time for a council is 259 days or less.  The Court option becomes more attractive for an “above average” DA, being a DA that takes longer than 292 days for a council to determine.  The other factor to consider for an applicant is that the decision to appeal needs to be made at the earliest possible time—that is, 41 days after lodgement—because the later the appeal is filed, the later the determination will be made.

What Happens if a Council Fails to Meet Expectations?

The Expectations Order is an order made under Section 9.6(9) of the Environmental Planning and Assessment Act 1979.  That section gives the Minister for Planning and Public Spaces the power to appoint a planning administrator to “exercise all or any particular function or class of functions of the council”.  The Minister must take into account the “heads of consideration” specified in the Expectations Order before deciding to appoint an administrator.

What is the Impact on a Council of Appointment of a Planning Administrator?

Elected representatives in Sydney metropolitan council areas no longer play a role in determining development applications. So, the appointment of a planning administrator to determine development applications makes no difference at the elected representative level.

The impact of an administrator at the council officer level will depend on the extent of the functions being exercised and the resources of the administrator.  If the administrator is determining DAs and leaving the assessment to Council officers, the impact on processes and DA time frames will be very little.  The fundamental cause of the delay in DA assessments is a lack of resources and the complexity of the process.  If an administrator comes to a council with a team of planners at his or her disposal, assessment times might improve.  Most council officers would probably be delighted if that occurred.  Where is the incentive to improve DA assessment times in that scenario?    

For those reasons, I suspect that the Expectations Order will not have the impact on DA assessment times that the Government hopes it will.

If you need advice and assistance with these matters, Madison Marcus is here to help. Contact us to navigate your DA process efficiently and explore the best options for your specific situation.