Do you want to carry out building or development work?

What is a development consent?

A development consent is a form of authority that must be obtained, usually from the local council, before certain kinds of activities can occur. For instance, development consent may be required before building a house or a major home extension, subdividing land, or demolishing or changing the use of a factory or office.

Depending upon the proposal, the development may  be exempt from requiring development consent or it may only require a ‘complying development certificate’, which can be issued by the council or privately by an accredited certifier.

How do I find out if I need development consent?

The best way to find out if you need development consent is to ask council staff.

Councils control development by zoning land for various purposes including residential, commercial, industrial, etc. Within each zone, councils have detailed requirements (e.g. maximum building height) which are set out in zoning plans called local environmental plans and in documents called development control plans. The zoning and development controls which affect your land and your proposal will determine whether your proposal requires consent. Council staff can tell you how your property is zoned, whether development consent is required, and which development controls are likely to apply to your proposal.

Some councils offer a pre-lodgement assessment service. Council staff will, for a fee, examine your  plans and say whether the council could approve the application and what conditions might apply.

Ask council staff if your proposal can be dealt with as a ‘complying development’. Council or an accredited certifier can authorise these sorts of developments  by issuing a ‘complying development certificate’.

How do I lodge an application?

Use standard forms from your council when lodging development applications and applications for complying development certificates. Applications must have enough detail for the proposal to be assessed properly. For building or subdivisions, this includes detailed plans.  If you are using a builder, they will usually ensure your application is in order and lodge it on your behalf. If you are preparing the application yourself, ask council staff or an accredited certifier for advice or to look over your application and tell you if anything is out of order.

You must pay a fee when lodging your application.

What happens next?

Applications for complying development certificates

Applications for complying development certificates are assessed by checking whether the proposal complies with legal requirements. If it complies, a certificate will be issued with standard conditions.

Development applications

When assessing your development application, the council must take into account the zoning, development control plans and the proposal’s impact on the environment and surrounding properties.

Maintain regular contact with the person assessing your application so you can provide more information if it is required or make changes to the application if there are problems which can be easily rectified.

At this point, many applicants approach councillors  for support. It is a good idea to give councillors information on the application and why you believe  
it warrants consent, but don’t be pushy. It is inappropriate to ask councillors for commitments  
of support. Avoid overloading them with information. Councillors are not paid a salary and often work full time in paid employment. This means they often struggle to find enough time to read all of the material in council business papers.

After assessing your application, council staff will write a report recommending approval or refusal. If approval is recommended, the report will include recommended conditions. The final decision will be made by the elected council, or by a committee of councillors, or  by a staff member if this power has been delegated.

A number of councils in NSW use Independent Hearing and Assessment Panels (IHAPs) for development applications that are significant in size or complexity  or have unresolved objections. IHAPs are mandatory  for councils in the Greater Sydney Region and for Wollongong City Council (effective from 1 March 2018).  IHAPs are made up of professionals who can provide expert independent advice. The panel reviews the council officer’s assessment report, inspects the site and invites residents and the applicant to address the hearing. The panel then makes its recommendation to council on the determination of the DA.

What about notification and advertising?

Applications for complying development certificates

The legislation requires an accredited certifier (council or private) to notify neighbours within a 20m radius of the proposed complying development site when they are processing an application for a complying development certificate in a residential zone. Objections should only be taken into account if they show the proposal does not comply with council requirements.

Development applications

Most councils notify owners of nearby properties in writing of certain kinds of development applications. The notification requirements can be found in council’s development control plan (DCP). Notification usually includes details of the proposal and an invitation to visit the council and review the application. Anyone may make a submission on the merits of the application whether or not it has been advertised or notified.

Many councils also advertise applications in local newspapers and provide details on their websites through a ‘DA tracker’ webpage.

Councils usually treat views expressed in submissions seriously, so it is important to discuss your proposal with your neighbours before you lodge an application to resolve or minimise opposition to your application. Ask council staff whether there are problems with the application arising from objections. You can ask to inspect letters of objection. If the council refuses access, it must give reasons. Even if access is refused, you can apply for access under the Government Information (Public Access) Act 2009 (GIPA Act).

Be prepared to make changes to the proposal in response to objections. This often helps applicants obtain consent. If you and an objector cannot agree to changes and your council has a mediation service, apply to have your application mediated.

How long does it take to obtain consent?

Applications for complying development certificates

The time limit for councils and accredited certifiers to determine applications for complying development certificates is 20 days for development that requires a notice and 10 days in any other case. If your application for a complying development certificate is not determined within time, you may want to lodge a development application.

Development applications

Councils have 40 days to determine most development applications. This can be extended if council advises you in writing within 25 days of lodging the application that it requires further information. If an application is not determined by the deadline, it is deemed to have been refused and you may appeal to the Land and Environment Court. Even if the council has exceeded this timeframe, this does not prevent the council from making a determination on your application if you choose not to appeal the ‘deemed refusal’.

Many councils do take more than 40 days to process applications, so if you are worried about the delay, contact the responsible council officer or their superior to discuss your concerns. You can also complain to the general manager or ask a councillor to make enquiries on your behalf.

What if I am unhappy with the outcome?

Applications for complying development certificates

If your application for a complying development certificate is refused, you can modify your proposal and reapply or lodge a development application with the council. Little can be done if you are not satisfied with the conditions imposed on these certificates. These conditions are predetermined by your council and cannot be varied.

Development applications

If your development application is refused or is approved subject to conditions you object to, there are a number of things you can do. You can amend the application and reapply. If you choose to reapply, before doing so talk to council staff to ensure that it will not be refused again for the same reasons.

If a consent has been issued with an unsatisfactory condition, you can apply to modify the consent by altering or removing the offending condition. A cheap and simple option is to apply to the council for a review of its decision. You should do so as soon as possible as a review can not be done after the period which you may appeal to the Land and Environment Court.Finally, you can appeal to the Land and Environment Court within six months of the decision. The court will carry out its own fresh assessment of the proposal. Seek legal advice on the likely cost and the prospects of success in an appeal. Even if you are going to appeal, keep in touch with the council to see if a compromise can be reached before going to court. You can also  ask the council to conciliate or mediate before a  court hearing.

Can the Ombudsman help me?

The Ombudsman has jurisdiction over local councils, councillors, council staff and accredited certifiers and the Office receives numerous complaints about development applications every year.

However, we investigate very few complaints about development applications. Under section 13(5) of the Ombudsman Act 1974 we are prevented from investigating complaints where there is a right of appeal or review, unless there are special circumstances. Where the elected council makes the decision on a development application, section 13(5) of the Ombudsman Act limits our ability to investigate the decision. Section 9.45 of the Environmental Planning and Assessment Act 1979 provides such a right as it allows a person to bring an action in the Land and Environment Court to remedy or restrain a breach of the Act. This means that we seldom investigate complaints that a council has failed to determine a development application, that a development application has been refused, or that an applicant objects to the conditions of consent. In all these cases you can appeal to the Land and Environment Court.

Only the council itself or the Land and Environment Court can grant, amend or revoke a development consent. We are not able to issue a consent or direct the council to do so. Councils have the right to judge for themselves the merits of development applications.

If you are unhappy with the conduct of a private accredited certifier, you should first complain to the Building Professionals Board (BPB) who is responsible for their accreditation. The BPB can investigate and take disciplinary action on complaints about the professional conduct of the accredited certifier. If the accredited certifier does not reply to your complaint, you can complain to our office. We can make inquiries with the accredited certifier about a failure to reply.

Other assistance

Complaints about the general administrative conduct of councils, councillors and council staff can also be made to the Office of Local Government (OLG):

Chief Executive, Local Government
Office of Local Government
Locked Bag 3015
NOWRA NSW 2541
Phone: 02 4428 4100
Email: olg@olg.nsw.gov.au

Complaints about alleged corrupt conduct of councillors or council staff can be made to the Independent Commission Against Corruption (ICAC):

Chief Commissioner
Independent Commission Against Corruption
Level 7, 255 Elizabeth Street
Sydney NSW 2000
Australia
GPO Box 500
Sydney, NSW, 2001
Phone: 02 8281 5999
Email: icac@icac.nsw.gov.au

Contact us for more information

Level 24,
580 George Street
Sydney NSW 2000
Toll free (outside Sydney metro) 1800 451 524
Email info@ombo.nsw.gov.au

National Relay Service 133 677
Telephone Interpreter Service (TIS): 131 450
We can arrange an interpreter through TIS or you can contact TIS yourself before speaking to us.

© State of New South Wales, June 2018
This publication is released under a Creative Commons license CC BY 4.0.