Challenging a council consent (as a third party)

The rights of third parties in the development process are relatively limited. Generally, as an affected neighbor, you will be notified by council of the proposal and invited to make submissions on how the development will impact you. You can view our article on preparing objections. You can view our article on preparing objections here.

However, your submission is not likely to significantly impact the assessing officer’s final determination. Even though public submissions are a relevant consideration in assessing development applications under section 79C of the Environmental Planning and Assessment Act 1979 (EPA Act), they are just one of many considerations which the assessing officer must weigh up in determining the application.

Once a development consent is issued by council, it cannot be revoked; not even if it is an invalid consent. In fact, a consent will remain valid, despite any obvious or manifest deficiency, until a Court orders that it be set aside.

This is where you have the opportunity to take action. Any person can make an application to the Land and Environment Court to review the decision of a council to issue development consent.

However, judicial review proceedings are very different to the Class 1 process (follow the link hereto our article on the Class 1 process).

You are asking the Court to set aside a consent on the basis that it is somehow an invalid decision. You are not asking the Court to reconsider the merits of the application and whether or not the decision was a good decision – the Court can only set aside the consent if it is satisfied that the decision making process was somehow compromised with the effect that the determination is invalid.

Strict time limits apply to your right of appeal. If you are thinking about challenging someone else’s consent contact us as soon as possible so that we can let you know whether you have prospects and whether you’re still within the time frame for an application to be made.