New Guidelines on the Withdrawal of Development Applications

In October 2023, the Guidelines for the Withdrawal of Development Applications (“the Guidelines”) were issued under Section 23A of the Local Government Act 1993 (“LG Act”)to deal with the increasing length of time to process development applications.

The Guidelines

The Guidelines require councils to “consider and apply all necessary measures to accelerate their development assessment processes whilst remaining accountable for their speed in decisions”. The introduction notes in particular the issue of encouraging applicants to withdraw development applications rather than assessing them as contributing to the overall housing crisis. As such, the Guidelines require councils to be satisfied that the request to withdraw a development application is consistent with the following principles:

1. Councils in NSW can contribute to the challenge of addressing the State’s housing shortage through their responsibilities as local planning authorities.
2. The expeditious assessment and determination of development applications creates a pipeline of development proposals with housing opportunities.
3. Councils in NSW are required to devote appropriate resources to their planning and assessment teams to ensure development applications are assessed and determined within reasonable timeframes, consistent with the Environmental Planning and Assessment (Statement of Expectations) Order 2021 as issued under section 9.6(9) of the Environmental Planning and Assessment Act, 1979 (“EP&A Act”).
4. Councils are not to engage in practices of delay in assessing applications, including unnecessarily asking applicants to provide information not necessary for the assessment of the proposal or seeking the applicant to withdraw the proposal.
5. The request to withdraw a development application is consistent with the Best Practice Guide and the request is not intended to enhance council’s performance data outcomes.
6. Data from the NSW Planning Portal will continue to be used to show the performance of councils in the assessment of development.

The Guidelines are intended to supplement the Department of Planning Environment’s ‘Development Assessment Best Practice Guide’ and support key existing legislative provisions regarding the lodgement, rejection, and withdrawal of development applications including:

1. Clause 24 of the Environmental Planning and Assessment Regulation 2021 (“EP&A Regulation”) which sets out the content, form and information that is to be provided with a DA
2. Clauses 24 and 36 of the EP&A Regulation which sets out the process of lodgement of a DA
3. Clause 39 of the EP&A Regulation allows a council to reject a DA if it is illegible or unclear as to the development sought, or does not contain the information required by the EP&A Regulation to enable assessment, and
4. Clause 40 of the EP&A Regulation allows an applicant to withdraw an application.

Implications

Under section 23A(3) of the LG Act, councils are required to “take any relevant guidelines issued under this section into consideration before exercising any of its functions”. As such, failure to consider the principles within the Guidelines exposes council to intervention by the Minister for Local Government. Alternatively, failure to consider the principles may also lead to intervention by the Minister for Planning and Public Spaces during reviews enabled under Environmental Planning and Assessment (Statement of Expectations) Order 2021 or when considering the issue of Directions under Division 9.1 of the EP&A Act.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.