If you’ve lodged a Development Application (DA) with your local council and weeks (or even months) have passed with no decision, you may be wondering what’s going on — and whether you’re stuck in limbo.
In these situations, you may have heard the term “deemed refusal.” But what does it actually mean, and how does it affect your ability to move forward?
This article explains the concept of deemed refusal under planning law, what triggers it, how it relates to the Land and Environment Court, and what options are available if your application has stalled.
What Is a Deemed Refusal?
A deemed refusal occurs when a consent authority (usually the local council) does not make a decision on your Development Application (DA) within the statutory time frame set by planning legislation.
In New South Wales, this period is typically:
- 40 days for a standard DA (under section 4.59 of the Environmental Planning and Assessment Act 1979 (NSW)), or
- Longer in certain cases involving integrated development or designated development, where additional referrals and assessments are required.
If the council does not issue a formal determination (either an approval or a refusal) within that period, the law treats the application as having been refused — even if no formal notice has been sent. That’s what is meant by “deemed refusal.”
Importantly, a deemed refusal does not mean your application has been rejected based on its merits — it simply opens the door for you to take further legal steps, particularly in the Land and Environment Court.
Why Does Deemed Refusal Exist?
The deemed refusal mechanism is designed to prevent unnecessary delays. It ensures applicants aren’t left indefinitely waiting for a council to make a decision. Once the relevant time period expires, you have the legal right to appeal to the Land and Environment Court as if the application had been refused.
This is especially useful in circumstances where councils may be slow in processing or finalising decisions due to high volumes, staff shortages, or ongoing negotiation with applicants.
What Are Your Options After Deemed Refusal?
Once your DA hits the deemed refusal stage, you have several options:
- Continue Liaising with Council
-
- Many applicants choose to keep working with council staff to resolve any outstanding issues. Deemed refusal doesn’t force you to go to court — it simply gives you the option to escalate. If council is actively engaging with you and you’re confident of a positive outcome, it may make sense to wait.
- Lodge an Appeal in the Land and Environment Court
-
- You may choose to appeal the deemed refusal under section 8.7 of the Environmental Planning and Assessment Act. This allows you to bring the matter before the Land and Environment Court and ask it to assess your application in place of the council. This is a common path where negotiations have stalled or where you need a timely resolution — for example, to meet a construction deadline or financing condition.
- Withdraw and Reapply
-
- In some cases, especially where there are significant design or compliance issues, it may be more practical to withdraw the existing DA, make revisions, and submit a new application. This can reset the process, though it may involve additional time and cost.
What Happens in a Court Appeal?
If you appeal a deemed refusal, the Court process generally looks like this:
- Conciliation conference
- The Court usually facilitates a conciliation meeting between the applicant and council (section 34 conference), which can result in a negotiated approval.
- Hearing
- If conciliation fails, the matter proceeds to a hearing. The Court will assess your DA on its planning merits.
- Expert evidence
- You may need reports from planners, traffic consultants, or other professionals to support your case.
- Timeframes
- A court appeal can take several weeks to months depending on complexity, but offers a clear process and outcome.
Is Legal Advice Necessary?
While it’s possible to manage a DA or even a court appeal without legal representation, the planning system can be complex. An experienced planning and environment lawyer can:
- Assess whether you have strong grounds for an appeal
- Identify any legal or procedural risks
- Work with planners and experts to prepare a strong case
- Represent you in court or conciliation negotiations
Key Takeaways
- A deemed refusal occurs when council doesn’t determine your DA within the statutory timeframe — usually 40 days.
- It does not mean your DA has been rejected on its merits, but gives you the legal right to escalate the matter.
- You can choose to negotiate, appeal to court, or revise and resubmit.
- Legal advice can help you navigate your options and avoid unnecessary delays.
If your DA has been sitting with council for longer than expected and you’re unsure what to do next, understanding your rights under the deemed refusal rules is an important step toward moving forward with confidence.
