Council has not determined my application

Under the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulation 2021, a consent authority is generally given a set number of days to determine a development application before it is taken to have been refused. This period is commonly 40 days for a standard local application, and longer (such as 60 days) for designated, integrated or concurrence development, or 90 days for State significant development. The exact period that applies, and how the days are counted, depends on the type of application and whether the clock has been paused, so the position should be checked against the specific facts.

Since 21 March 2026, an appeal against the deemed refusal of a development application or modification application can be commenced in the Land and Environment Court at any time after the assessment period ends and before the consent authority determines the application. There is no longer a fixed period running from the end of the assessment period. Because the change has no transitional cut-off, it also applies to undetermined applications whose earlier appeal period had already run out. If the application is determined before an appeal is commenced, the deemed-refusal route closes, and any appeal must be brought against the actual determination, generally within six months after it is notified or registered on the NSW Planning Portal. A later determination does not by itself end an appeal that has already been commenced. For a minor modification under section 4.55(1) lodged on or after 21 March 2026, a consent authority that has not determined it within 14 days must still determine it and generally cannot refuse it. Whether an appeal is available and worthwhile depends on the type of application and where the assessment stands, so the position should be confirmed rather than assumed.

Generally yes. A deemed refusal does not formally decide your application, so the council can usually still grant consent while the assessment continues, and lodging an appeal does not by itself stop those discussions. In practice a deemed refusal appeal often runs in parallel with council assessment, and many matters resolve by the council or the Court approving the application before a contested hearing. Whether to appeal, keep working with the council, or do both depends on the circumstances of the application.

A deemed refusal appeal is generally a Class 1 merits appeal in the Land and Environment Court, where the Court re-considers the application and can decide to grant or refuse consent. These appeals are commonly referred to a conciliation conference under the Land and Environment Court Act 1979, which gives the parties a structured opportunity to reach agreement before any hearing. As a result the process is not necessarily adversarial and is often used to bring a timetable and structure to a stalled assessment, though outcomes depend on the merits of the proposal and the facts.