Deemed refusal in NSW: when appeal rights arise

A deemed refusal is not a decision against the applicant on the planning merits. It is the legal consequence of an application not being determined within the prescribed assessment period. It may allow the applicant to appeal to the Land and Environment Court, and it does not stop the consent authority from determining the application after that period ends.

The difficult part is the date. It depends on the application class, lawful lodgement, exhibition, referrals, information requests, amendments and the calendar rules. A portal’s elapsed-day counter is useful evidence, but it is not the legislation. For a shorter overview of the options when a council has not decided an application, see deemed refusal appeals in NSW.

Ordinary applications have 40-, 60- or 90-day periods

Section 91 of the Environmental Planning and Assessment Regulation 2021 (EP&A Regulation) prescribes the principal assessment periods:

• 90 days for State significant development;
• 60 days for designated development, integrated development (other than Class 1 aquaculture development), development requiring concurrence, and an application accompanied by a biodiversity development assessment report that proposes to reduce the number of biodiversity credits required to be retired; and
• 40 days for other development applications.

The calculation also requires section 92, section 93 and section 94, which govern commencement, additional exhibition days and clock-stopping events.

Section 93(1) does not suspend the whole clock for exhibition. For designated development, nominated integrated development, threatened species development and State significant development, the assessment period “is increased by the number of days by which the public exhibition period … exceeds the minimum period required under the Act”.

A request for more information can stop the clock, but only on the Regulation’s terms. For a development application, the assessment period stops running from the day the consent authority requests additional information under section 36 until the earlier of the day the information is given and the day the applicant gives, or is taken to have given, written notice that it will not be given: section 94(2). That pause applies only if the request is made “within 25 days after the day on which the development application is lodged”: section 94(3). Section 94 also stops the clock in some other cases, including a request for a response to submissions on State significant development. Match the precise provision to the event: neither every exhibition period nor every informal request stops time.

For an ordinary development application, the amendment rule is section 38(2), not the rule for modification applications. If the authority approves the amendment, the application is taken to have been lodged on the day the applicant applied for the amendment only if the authority “considers the amendment not to be minor” and “notifies the applicant, through the NSW planning portal, that the later day applies”. Record the amendment-application date, approval, non-minor assessment and portal notice. For an amendment to a modification application, the corresponding rule is section 113(5).

The clock starts only when the application is legally made

The clock may start later than the first upload. For a development application, the assessment period “commences on the day on which the development application is lodged”: section 92(1). An application is lodged on the day the fees are paid or, if the applicant is told that no fee is required, on the day it was submitted on the NSW planning portal: section 24(3). A modification application is lodged in the same way: section 99(4). Required information, owner consent and any rejection process can also matter.

In Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264, Basten AJA said at [24] that “the lodgement of documents on the planning portal … now constitutes the making of an application”. Gleeson JA agreed with Basten AJA’s reasons; Preston CJ of the Land and Environment Court (LEC) agreed in the result for separate reasons: [1], [71]–[72]. The Court granted leave to appeal from a separate-question decision in Class 1, but dismissed the appeal. The portal notification recorded lodgement after the saving date, so the application had not been “made” by that date: [27]–[29], [33] and the orders.

The decision construed the former 2000 Regulation and a transitional provision in the State Environmental Planning Policy (Housing) 2021 (the Housing SEPP). It does not replace the lodgement, fee and content requirements of the current Regulation.

The practical file should therefore include the portal receipt, fee receipt, lodgement/acceptance record, requests for information, responses, exhibition dates, referral dates and every amendment.

Crown development follows a separate timetable

Do not insert a Crown development application into the ordinary 40/60/90-day table. Section 91(4) of the EP&A Regulation makes the 40-day period apply to other development applications “other than a Crown development application referred to in section 95”.

Section 4.33(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) provides that, if the authority has not determined a Crown development application within the prescribed period, the applicant or authority “may refer the application” to the Minister or, where the authority is a council, to the applicable planning panel.

Under section 4.33(5), a further referral to the Minister may be made if that panel does not determine the application within its prescribed period. Section 95 of the EP&A Regulation prescribes, respectively, 70 days after lodgement and 50 days after referral to the panel.

Those 70- and 50-day periods govern referral and escalation under the special Crown process. They are not deemed-refusal periods and do not themselves create a Part 8 appeal. Section 4.33(1) also says that an authority other than the Minister must not refuse a Crown application without the Minister’s approval or impose a condition without the applicant’s or Minister’s approval. The status of the applicant and the exact referral history must therefore be established before any procedural date is advised.

Expiry opens an appeal window

Section 8.11 treats the application as refused for the purpose of appeal rights, so the applicant may be able to appeal. The assessment does not automatically end.

Before an appeal is filed. Section 8.10(2) says that an applicant’s appeal against a deemed refusal “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”. An actual determination closes that filing window. The rules for an actual determination then apply, including the six-month appeal period in section 8.10(1) and, for many council and panel decisions, the option of a review under Division 8.2: see Development application refusals in NSW.

On the text, a deemed refusal is challenged by appeal rather than by review. Section 8.2(1) lists only actual determinations and decisions, and section 8.11(1) treats the application as refused “for the purpose only of this Division”, that is, Division 8.3, which governs appeals.

Older applications. The rule in section 8.10(2) commenced on 21 March 2026. Before then, an appeal against a deemed refusal generally had to be made within 6 months after the date of the deemed refusal: section 8.10(1) as it then stood. Schedule 6, section 34B of the EP&A Regulation keeps the former rules for a review or appeal lodged, but not finally determined, before 21 March 2026. The Department of Planning, Housing and Infrastructure’s information sheet on the change says there are no savings or transitional provisions for the deemed-refusal changes, so an application still undetermined can be appealed “even if the deemed refusal appeal rights have previously expired”. Check the application’s history before relying on that position.

After an appeal is filed. Section 8.11(3) says: “Any such determination of an application does not affect the continuation or determination of an appeal made under this Division against the deemed refusal of consent (or modification of consent) under subsection (1).” If the later determination grants consent or modifies the consent, section 8.11(4) says the authority is entitled, “with the consent of the applicant and without prejudice to costs”, to have the appeal withdrawn before it is determined.

This is why an applicant should decide whether to preserve the appeal right before an expected council meeting or panel determination.

Modification timing depends on the statutory pathway

Modification timing is not one uniform regime.

Section 4.55(1): a 14-day no-refusal mechanism

Part 8 of the EP&A Act, which contains the review and appeal provisions, does not apply to a modification under section 4.55(1): section 4.55(1AA). Under section 4.55A and section 118A of the EP&A Regulation, the prescribed determination period is 14 days after lodgement.

If that period expires, section 4.55A(3)–(6) sets out what follows. The authority “must, as soon as practicable, determine” the application and “must not refuse” it. A condition may be imposed, but it “must relate only to the modification application” and “must not defeat the purpose of the modification application”. There is an express exception: the authority must refuse a proposed modification to a housing and productivity contribution condition unless the Minister has approved the modification under section 7.28(6).

That is a no-refusal mechanism, not deemed approval. The consent is not modified merely because day 14 passes.

Those provisions commenced on 21 March 2026. Under Schedule 6, section 34A of the EP&A Regulation, a modification application lodged, but not finally determined, before that date must be determined as if the amendments had not commenced. Confirm the lodgement date before applying the current rule.

Section 4.55(1A), section 4.55(2) and section 4.56: 40-day deemed refusal

Section 119(1) of the EP&A Regulation says that an authority is taken to have refused a modification application if it does not determine it “within 40 days after the modification application is lodged”. For an information request, sections 119(4) and 119(5) set out the stop-clock rule:

“The 40-day period specified in subsection (1) ceases to run during the period between the day on which a consent authority requests additional information from an applicant under section 104 and the earlier of—

(a) the day on which the information is given to the consent authority, or

(b) the day on which the applicant gives, or is taken to have given, written notice to the consent authority that the information will not be given.

Subsection (4) applies only if the consent authority’s request is made within 25 days after the day on which the modification application is lodged.”

The available applicant appeal is under section 8.9 of the EP&A Act, not the development-application appeal under section 8.7. See Modifying a development consent in NSW for the gateway tests.

Calendar rules determine the final date

Section 36(1) of the Interpretation Act 1987 (NSW) says a prescribed or allowed period dating from a given day, act or event is reckoned “exclusive of that day or of the day of that act or event”.

If the last day falls on a Saturday, Sunday, public holiday or bank holiday in the place where the relevant thing is to be or may be done, section 36(2) says “the thing may be done on the first day following” that is not one of those days. More specific inclusions or exclusions in the EP&A Act or Regulation prevail, because the Interpretation Act 1987 applies except so far as a contrary intention appears: section 5(2).

A defensible calculation is a schedule, not a single formula:

Event	Date	Provision	Days added, excluded or reset	Evidence
Lodged: fees paid, or submitted if no fee is payable		Reg 24(3) or Reg 99(4)	Start	Fee receipt and portal lodgement notice
Excess exhibition days for an identified class		Reg 93(1)	Add only days above statutory minimum	Public notice
Information request		Reg 94 or Reg 119	Stop: for a request under Reg 36 or Reg 104, only if made within 25 days after lodgement (Reg 94(3), Reg 119(5)); other Reg 94 events on their own terms	Request
Applicant response		Relevant provision	Restart	Portal receipt
Non-minor development-application amendment satisfying all statutory steps		Reg 38(2)	New lodgement date is amendment-application date	Application, approval and portal notice
Non-minor modification amendment satisfying all statutory steps		Reg 113(5)	New lodgement date is amendment-application date	Application, approval and portal notice
Prescribed deemed-refusal period ends		Reg 91 or Reg 119	Deemed event	Calculation

Have the schedule checked before filing. An appeal filed before the period ends may be incompetent, that is, not validly brought. Waiting carries the opposite risk: once the authority determines the application, a deemed-refusal appeal can no longer be made under section 8.10(2)(b).