Development application refusals in NSW: review, appeal and next steps

A refused development application may not end a project, but it starts several clocks. First identify the decision, preserve every available deadline and decide whether the refusal reasons can be answered without changing the project into something materially different. The choice between review, appeal and a fresh application follows that analysis. Our page on a refused development application summarises the options; this article explains how to choose between them.

Establish whether the refusal is actual or deemed

There are two distinct events:

• an actual refusal, recorded in a notice of determination; and
• a deemed refusal, which arises when the applicable assessment period expires without determination.

The pathways overlap, but their dates do not. A later actual determination can affect a deemed-refusal appeal differently depending on whether proceedings have already been filed. See Deemed refusal in NSW: when appeal rights arise for the calculation rules.

Download the notice, stamped plans, assessment report, submissions, referral responses and portal chronology. Identify the date of notification or registration, the prescribed assessment period and any valid clock-stopping events. Do not calculate a deadline only from an email summary.

Each refusal reason needs an evidentiary answer

Section 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) lists the matters the consent authority must consider. Since 15 December 2025, section 4.15(1)(b) refers to the significant likely impacts of the development, rather than to its likely impacts generally.

Sections 4.15(1A) and (1B), which commenced on the same day, let the regulations declare factors that are, or are not, relevant to impacts, site suitability and the public interest. A consent authority must not consider a factor declared not relevant. The first declaration, in section 65A of the Environmental Planning and Assessment Regulation 2021, covers the significant likely impacts of other development: development for which the application does not seek consent, but which is likely to be, or will be, required as a result of it. If a refusal reason relies on a factor declared not relevant, identify that in the response.

Since 21 March 2026, sections 4.15(1C) and (1D) confine the assessment of “targeted assessment development” to the planning instruments and other matters in section 4.15(1)(a) and the submissions in section 4.15(1)(d). That applies only to development a State environmental planning policy has declared to be targeted assessment development under section 4.20A, so check whether any declaration covers the proposal.

Schedule 6, section 34(2) of the Regulation says that a relevant application lodged, but not finally determined, before the relevant amendments commenced “must be determined as if the items had not commenced”. Section 34(3) says the saving “ceases to have effect 12 months after” commencement. Under section 34(6), a relevant application includes a development application and an application to modify a development consent.

The saved amendments are the “significant” test, sections 4.15(1A) and (1B), and section 65A of the Regulation. The Act amendments commenced on 15 December 2025, so the saving is due to stop applying in December 2026. After that, an application lodged before 15 December 2025 that is not finally determined will be determined under the amended section 4.15. Further amendments to section 4.15 made by the Environmental Planning and Assessment Amendment (Planning System Reforms) Act 2025 (NSW) had not commenced on 30 September 2026. Confirm which version applies before answering the refusal reasons.

Build a response table for every reason:

Refusal issue	What the authority found	Evidence or design response	Does the response alter the proposal?
Permissibility or instrument	Exact provision and interpretation	Legal and planning analysis	May be fundamental
Site or environmental impact	Identified impact and threshold	Specialist evidence or mitigation	Sometimes
Design	Particular non-compliance or outcome	Revised drawings and comparison	Depends on scale
Information gap	Missing study, detail or inconsistency	Complete and coordinated material	Not necessarily
Public interest	Matters relied on, including submissions	Evidence addressing the stated concern	Depends

Amended plans alone do not answer a refusal reason. The response should trace each change through all affected drawings, reports and requested conditions.

A statutory review may be available

Division 8.2 of the EP&A Act lets an applicant ask for a determination to be reviewed. Under section 8.2, a review is available for the determination of a development application or modification application by a council, a local planning panel, a Sydney district or regional planning panel, or a delegate of the Minister. It is not available for a determination by the Independent Planning Commission or the Planning Secretary, or for an application relating to a complying development certificate, designated development or Crown development. A determination can be reviewed only once. A deemed refusal cannot be reviewed; its remedy is an appeal.

In requesting a review, the applicant may amend the proposal. The reviewer may consider the amended development only if satisfied that it is substantially the same development (section 8.3(3)). Where a delegate of the council made the determination and the council has a local planning panel, the applicant may ask for the review to be conducted by that panel (section 8.3(4)(c)).

Section 8.3(2) sets the outside limit:

“A request under this division, other than section 8.2(1)(c), for a review of a determination or decision must not be made—

(a) after the period within which any appeal may be made to the Court has expired if no appeal was made, or

(b) after the Court has disposed of an appeal against the determination or decision.”

For an applicant dissatisfied with an actual determination of a development application or modification application, section 8.10(1) says the appeal “must be made within 6 months after the date the determination is notified or registered on the NSW planning portal”. That period therefore ordinarily sets the review-request limit through section 8.3(2)(a), subject to eligibility and the facts of notification or registration. Under section 244(4) of the Regulation, a review application is lodged on the day the fee is paid.

The Act also prevents overlapping filings. Section 8.9A provides:

“An appeal under this division against a determination or decision must not be made during the period—

(a) beginning on the lodgement of a request for a review of the determination or decision under Division 8.2, and

(b) ending on the confirmation or change of the determination or decision under section 8.4, the expiry of the period set under section 8.5(1)(b) or the withdrawal of the request by the applicant.”

For an eligible review of a determination or decision referred to in section 8.2(1)(a) or (b), section 8.10(4) says that, in calculating the appeal period, “the period referred to in section 8.9A must be disregarded”.

In practice, the six-month appeal clock stops on the day the review is lodged and restarts when the review ends. The review ends when the determination is confirmed or changed, when the applicant withdraws the request, or when any period set by the regulations under section 8.5(1)(b) expires. The Act itself sets no time limit for deciding a review. The clock restarts on the day the determination is confirmed or changed, which may be before the applicant receives notice of the decision. Record the appeal days already used before lodging, and calculate the remaining days from the date of the review decision, not the date the applicant learns of it.

These review and appeal rules commenced on 21 March 2026. Under Schedule 6, section 34B of the Regulation, a review or appeal lodged under Part 8 before then, but not finally determined, “must be determined as if the items had not commenced”, so the earlier rules continue to govern it.

A review can suit a proposal where the refusal reasons are finite, the evidence can be completed promptly and the reviewing body has a realistic basis to reach a different result. A council is not obliged to approve because plans have changed. Notice of the review application is given under Schedule 1, clause 20A of the Act, and the application is otherwise notified or advertised in the same way as the original application. A copy also goes to each concurrence authority (section 245 of the Regulation). Significant amendments may require further assessment.

A Class 1 appeal re-exercises the merits

Section 8.7 generally gives an applicant a Class 1 merits appeal against refusal, deemed refusal or unacceptable conditions of a development application. Section 8.9 does the same for a modification application. For an actual determination, section 8.10(1) supplies the six-month period quoted above.

For a deemed refusal, section 8.10(2) instead says an eligible appeal “may be made at any time—(a) after the expiry of the period prescribed by the regulations for the determination of the application for development consent or the modification of the development consent, and (b) before the consent authority determines the application for development consent or the modification of the development consent”.

A later actual determination starts the six-month period in section 8.10(1). If a deemed-refusal appeal is already on foot, sections 8.11(3) and 8.11(4) govern the effect of the later determination.

A Class 1 appeal is a rehearing on the merits. Section 39(2) of the Land and Environment Court Act 1979 (NSW) says the Court has “all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter”. It is therefore not confined to finding legal error in the council’s reasons.

The Court must apply the legislation and planning instruments legally applicable to its determination. Commencement, saving and transition provisions must be checked rather than assuming that either the council-decision date or the hearing date alone selects the governing version.

Under the current Class 1 Development Appeals Practice Note, the proceeding ordinarily moves through:

1. filing, service within 7 days and a first directions hearing, usually about 28 days after filing;
2. in a refusal appeal, the consent authority’s statement of facts and contentions, filed before that directions hearing;
3. a conciliation conference under section 34 of the Land and Environment Court Act 1979 (NSW), which the Court fixes in the ordinary course unless a party shows good reason, usually within 28 days, with without-prejudice plans and draft conditions exchanged beforehand;
4. if the conference is terminated, a second directions hearing, usually 7 days later, at which the Court fixes a hearing and gives directions for any expert evidence. Expert evidence may be adduced only in accordance with the Court’s directions, and the usual directions provide for experts to confer, prepare a joint report and give evidence concurrently; and
5. a hearing, normally beginning with a site view.

Appeals about detached single dwellings and dual occupancies, and other proceedings to which section 34AA applies, follow a separate Class 1 Residential Development Appeals Practice Note and a mandatory conciliation and arbitration process, unless the Court or a Commissioner decides that a matter should not be dealt with that way (section 34AA(3)).

A conference may produce agreement, but does not guarantee it. Any agreed outcome still requires the Court to be satisfied that it could lawfully make the decision.

A non-minor amendment may require re-exhibition, further evidence and additional time. Where section 8.15(3) applies, the Court must order the applicant to pay the consent authority’s costs thrown away by an amendment that is not minor. That subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 (NSW) applies. It is framed around an amended development application, so do not assume it governs an amendment to a modification application. A redesigned project may also exceed the proper scope of the appeal.

A fresh application suits a materially different proposal

A fresh application may be preferable where the proposal needs fundamental redesign, the review route is unavailable or the appeal would concern a substantially different project. Before relodging:

• determine whether the use is permissible and the site constraints are capable of resolution;
• identify how each former refusal reason has been answered;
• update every dependent report and drawing;
• check whether fees, contributions, referral arrangements or controls have changed; and
• consider whether withdrawing or discontinuing another process has costs consequences.

A new application has a new assessment record. It does not automatically erase the evidentiary or planning significance of the earlier refusal.

Choose the route against the same constraints

Compare the routes against the same criteria:

• deadline and eligibility;
• whether the refusal is legal, evidentiary or design-based, and the expert evidence required;
• scale of amendment and any exhibition or community consequence;
• decision-maker and referral dependencies;
• time, cost and commercial holding risk; and
• whether negotiation can continue without losing a statutory right.

Sometimes preserving an appeal while discussions continue is the prudent course. Under the post-21 March 2026 framework, however, section 8.9A prevents an appeal being filed while a Division 8.2 review is underway. The sequence therefore matters and should be settled before the first filing.

The immediate deliverable should be a dated options note: the actual and deemed dates, every available right, the last safe filing date, the refusal-response matrix and a recommendation based on the project evidence. Our planning and development practice covers reviews, Class 1 appeals and fresh applications.