Deemed refusal appeals in NSW - you’re not out of time

A reminder to all that the Environmental planning reforms effective from 21 March 2026 (explained in more detail in our previous article), have changed the position on appeals against deemed refusals. 

The previous six-month statutory time limitation for commencing a Land and Environment Court appeal against a deemed refusal has been removed.

Section 8.10(2) of the Environmental Planning and Assessment Act 1979 now provides (emphasis added): 

8.10   Time within which appeals may be made

(2)  An appeal under this division by an applicant for development consent, or for a modification of a development consent, against a deemed refusal under section 8.11 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.

What does this mean? 

There is no longer a prescribed six-month period within which an applicant must commence a deemed refusal appeal. 

Clause 91 of the Environmental Planning and Assessment Regulations (2021) prescribes the relevant deemed refusal periods as follows: 

91   Time for determining development applications

(1)  A consent authority is taken to have refused development consent if it has not determined the development application within the assessment period calculated in accordance with this Division.

(2)  The assessment period is 60 days for a development application—

(a)  for designated development, or

(b)  for integrated development, other than integrated development that is Class 1 aquaculture development, or

(c)  for development requiring concurrence, or

(d)  that is accompanied by a biodiversity development assessment report under the Biodiversity Conservation Act 2016 that proposes to reduce the number of biodiversity credits required to be retired.

(3)  The assessment period is 90 days for a development application for State significant development.

(4)  The assessment period is 40 days for all other development applications, other than a Crown development application referred to in section 95.

Accordingly, once a development application is deemed to be refused (being either after 40, 60 or 90 days), an applicant can commence Land and Environment Court proceedings any time thereafter, provided the application remains undetermined. 

The takeaway 

Applicants should not assume that the right of appeal for a deemed refused application has been lost. 

If a development application remains undetermined after it has been deemed refused, the appeal window remains open until the application is determined. 

This is an important change for both applicants and consent authorities to keep in mind when managing outstanding development applications. 

Author: Laura Raffaele 

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.