Land and Environment Court planning appeals in regional NSW

The Land and Environment Court (LEC) exercises the same State-wide jurisdiction for a development in regional New South Wales as it does for a development in Sydney. Locality changes the evidence, site arrangements and practical conduct of a case, not the source or quality of the appeal right.

The appeal right is State-wide

Section 17 of the Land and Environment Court Act 1979 (NSW) (LEC Act) places planning and environmental appeals in Class 1. The principal applicant rights are in the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act):

• section 8.7 for refusal, deemed refusal or conditions on a development application; and
• section 8.9 for eligible modification decisions and deemed refusals.

The current filing period, the post-21 March 2026 review pause and any transition provision must be calculated from the actual decision and portal record. A review or appeal lodged before 21 March 2026, and not finally determined, is decided under the earlier rules (Schedule 6, section 34B of the Environmental Planning and Assessment Regulation 2021). See Development application refusals in NSW, Deemed refusal in NSW and Modifying a development consent in NSW.

Section 8.6(3) excludes a Division 8.3 appeal from:

• an Independent Planning Commission consent decision made after its public hearing into the development; and
• determination of, or failure to determine, a complying development certificate application.

An objector does not gain a general merits appeal because a proposal is controversial. Section 8.8 gives a confined right to a person who duly made a submission by way of objection during public exhibition of an application for designated development, against a decision to grant consent. That includes State significant development that would be designated development but for section 4.10(2). Statutory exclusions still apply: for example, section 8.6(3)(a) excludes an appeal where the Independent Planning Commission decided after a public hearing. The exact deadline is in section 8.10(3): “An appeal under this division by an objector may be made only within 28 days after the date the objector is notified of the decision appealed against.”

Class 1 is a rehearing on the merits

In Class 1, the Court re-exercises the relevant administrative decision-making function. Section 39(2) of the LEC Act gives it “all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter”. The Court considers the evidence, applicable planning controls and statutory matters, rather than asking only whether the council made a legal error.

Class 4 judicial review, under section 20(2) of the LEC Act, instead asks whether a public decision is legally valid. An appeal under section 56A of the LEC Act lies from a Commissioner to a Judge on a question of law.

The distinction also confines the remedy on an appeal from a Commissioner. In Etherington v North Sydney Council [2026] NSWCA 137, Preston CJ of LEC said at [91] (Leeming JA agreeing and giving supplementary reasons; Free JA agreeing with both judgments):

“There are restricted circumstances where a judge of the Land and Environment Court in disposing of an appeal under s 56A(2) of the Court Act, or this Court in disposing of an appeal under s 57(2) of the Court Act, can dispose of the matter that is the subject of the appeal. Typically, this is where no further findings of fact are required in order for the appellate court to dispose of the matter”.

Further findings on expert evidence were required: [92]–[93]. The Court set aside the restrictive remitter order and returned the matter to the Land and Environment Court for determination according to law: [94], [96] and orders 2, 4 and 5. It dismissed the grounds alleging a duty to approve acceptable or unopposed modifications and refused leave on the costs ground. At [88], partial approval power was assumed rather than decided. The decision confines the appellate remedy where necessary facts remain unresolved.

Regional conditions change how the case is run

The current Class 1 Development Appeals Practice Note governs case management. A typical matter proceeds from commencement and service, a statement of facts and contentions (by the consent authority in a refusal appeal, or by the applicant or objector in a conditions or objector appeal) and a first directions hearing, to 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. If the conference does not produce agreement, the Court fixes a contested hearing, which normally begins with a site view, 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.

The practice note makes specific provision for regional matters. Where the site is outside metropolitan Sydney, the first directions hearing is held by telephone, in the Registrar’s telephone directions list on Mondays. The hearing information sheet the parties complete when a hearing is fixed also asks whether an appeal about land outside the Sydney metropolitan region should be heard in the local area, and if not, why not.

The Court decides how and where steps occur. A site inspection can be especially important in regional proceedings, but the hearing is not automatically held in the nearest courthouse. Early directions should address travel, site safety, remote participation, community access, expert availability and any seasonal constraint affecting the evidence.

Local conditions shape the expert case

Regional matters often turn on evidence that cannot be reduced to a metropolitan template:

• natural hazards and access, including bushfire, flooding, coastal or river processes, water supply and evacuation;
• biodiversity, clearing, habitat connectivity, offset obligations, and Aboriginal and historic heritage;
• on-site wastewater, groundwater, servicing and utility capacity;
• road geometry, heavy vehicles, emergency access, agricultural land, biosecurity and land-use conflict; and
• noise, dust, odour, visual impact, local planning controls and the cumulative effects of mining, energy, tourism or extractive uses.

Experts should address the actual planning test and site conditions, identify assumptions and confer on genuine areas of disagreement. Local knowledge can be important evidence, but submissions and lay evidence must still be relevant, particularised and procedurally fair.

Panel decisions affect control of the appeal

Where a panel made the decision, current section 8.15(4) makes the council the respondent but subjects it to the panel’s control and direction in the conduct of the appeal. The council must also notify the panel.

That rule is due to change. Amendments made by the Environmental Planning and Assessment Amendment (Planning System Reforms) Act 2025 (NSW) (Schedule 1, items [134] and [135]) will remove the references to Sydney district and regional planning panels from section 8.15(4) once they commence. They had not commenced on 30 September 2026, so section 8.15(4) still applies to a regional planning panel’s decision.

That allocation matters for instructions, settlement authority and a section 34 agreement. Confirm it before substantive negotiations, including for a pending application affected by a saving or transition.

Conciliation requires a lawful outcome

Section 34 of the LEC Act lets the Court arrange a conciliation conference, with or without the parties’ consent, presided over by a Commissioner. Each party must participate in good faith. Under section 34(3), if the parties agree on the terms of a decision that the Court “could have made in the proper exercise of its functions”, the Commissioner must dispose of the proceedings in accordance with it. If they do not agree, the Commissioner terminates the conference and, unless the parties consent to the Commissioner deciding the case, reports the issues in dispute to the Court (section 34(4)). The matter then proceeds in accordance with the Court’s directions.

Section 34AA establishes mandatory conciliation and arbitration for specified detached dwelling and dual-occupancy proceedings, prescribed classes and proceedings the Court orders into that process. Those proceedings follow a separate Class 1 Residential Development Appeals Practice Note. The section’s scope and exceptions should be checked rather than assuming every residential appeal follows the same track.

Conciliation is not guaranteed settlement. A useful proposal should include consolidated plans, agreed or clearly marked conditions, a response to every contention and evidence for each statutory precondition.

Amendments, participation and costs remain governed by the Act

A material amendment during an appeal may require new assessment, notification, expert evidence and time. Section 8.15(3) is confined to an applicant appeal in which the Court “allows the applicant to file an amended application for development consent (other than to make a minor amendment)”. The Court must then order the applicant to pay “those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent”.

The subsection does not apply to proceedings to which section 34AA applies. Do not assume that it governs an amendment to a modification application; costs there depend on the powers and rules applicable to that proceeding.

Court processes may permit community submissions or oral evidence, but participation does not confer party status. Section 8.15(2) provides a specific discretionary joinder power in planning appeals. The Uniform Civil Procedure Rules 2005, rule 6.24 also addresses joinder where a person ought to have been joined or is necessary to determine all matters in dispute. Neither provision creates a general objector merits appeal; joinder depends on the statutory and procedural tests and an order of the Court.

A regional brief should resolve evidence and logistics early

Before filing or the first directions hearing, assemble the determination, verified deadline schedule and portal record; identify the controls, contentions, experts and local data; settle site-inspection and participation logistics; and identify amendment, notification and costs risk together with the person authorised to negotiate conditions and settlement.

The regional setting belongs in the evidence and case plan. It does not dilute the legal test or create a separate appeal jurisdiction. For the options after a refusal, see our page on a refused development application and our planning and development practice.