Deemed Refusal: What Happens When Council Simply Doesn't Answer

She rang on day 214.

Battle-axe subdivision, two lots, a modest and entirely conventional application in an established suburb. Lodged in the autumn. One request for additional information around week six, answered inside a fortnight. Then nothing. Two emails a month to a planner who'd been reassigned, one voicemail to a team leader, and a status on the portal that had said "under assessment" since June.

Her question was whether she should keep waiting or withdraw and start again with a different consultant. What she didn't know — and this is the ordinary case, not the unusual one — was that her application had been legally refused about six months earlier, that she'd had a right of appeal from that moment, and that the clock on that right was now half gone.

She wasn't being neglected out of malice. Assessment teams in growth councils are carrying more work than they can determine, and the ones I deal with are mostly conscientious people who are underwater. But the law doesn't ask why. It just runs the clock.

The clock, and what it actually is

When you lodge a development application, the consent authority gets a fixed period to determine it. If it doesn't, the application is taken to have been refused. Not rejected on its merits, not written back to you — simply deemed, by operation of the Environmental Planning and Assessment Act 1979, to have been refused so that a right of appeal exists.

The Land and Environment Court sets out the periods, which come from the EP&A Regulation 2021:

• 40 days for an ordinary development application, and generally for an application to modify an existing consent.
• 60 days for designated development, integrated development, or where the application requires concurrence from another agency.
• 90 days for State significant development.

Forty days is shorter than almost every applicant expects, and it is very much shorter than most councils actually take. Which is why the deemed refusal is best understood not as a failure but as a piece of ordinary plumbing: the legislature knew determination periods would be exceeded and built the pressure-release valve in advance.

The clock starts when the application is lodged, which for most purposes means when the fee is paid on the NSW Planning Portal. And it stops. A request for additional information within the early part of the assessment pauses it until you respond, which is entirely reasonable and also where most applicants' mental arithmetic comes unstuck. If you amend the application in a way the consent authority considers more than minor, it can reset the clock altogether.

So the honest version is: forty days of assessment time, not forty days of calendar time, and working out where you actually sit takes a look at the portal record rather than a look at the calendar. Councils will tell you the number if you ask. Most applicants never ask.

Six months, and then it's gone

Here's the part that cost my caller most of her options.

An appeal under section 8.7 of the Act must be lodged within six months. Six months from the date you're given notice of the determination — or, where there's been no determination, six months from the deemed refusal date.

Which means the right doesn't sit there indefinitely while you wait politely. On a 40-day application lodged in autumn, the deemed refusal arrives around week six and the appeal right expires around week thirty-two. Spend that window sending fortnightly follow-up emails and you can arrive at a genuine refusal, months later, having already lost the appeal right attached to the earlier one.

I don't think most applicants are being badly advised here so much as not advised at all. Planners lodge applications. Solicitors run appeals. The gap between those two jobs is where the six months quietly runs out.

If you're in an assessment that has gone long, the single most useful thing you can do this week is establish two dates: when the assessment clock started, and how many days of it have been paused. Everything else follows from those.

What an appeal is actually like

The picture in most people's heads is a courtroom, barristers, and a fight with the council that poisons every future dealing. That is available, and on a genuinely contested matter it happens. It is not the typical experience.

In 2022, seventy-seven per cent of Class 1 appeals were finalised by alternative dispute resolution and negotiated settlement, without the need for a court hearing. That figure is the court's own, and it's the number I'd want any owner to have in front of them before they decide the appeal path is too aggressive for them.

The mechanism doing most of that work is conciliation. For residential development appeals, section 34AA of the Land and Environment Court Act 1979 sets up a two-step process: a conciliation between the parties first and, only if that fails to resolve it, a hearing and a decision. The same Commissioner does both. In practice this means the parties end up in a room — often on the site itself — with someone experienced enough to say plainly which of the council's concerns are real and which aren't, and a strong shared incentive to land on amended plans everyone can live with.

That is a very different thing from a fight. It's frequently the first occasion anyone from the council has looked at the actual site, and a lot of applications that had been stuck for a year resolve in an afternoon with a setback change and a couple of extra conditions.

You commence with a Class 1 Application form filed with the court, and a filing fee that scales with the value of the development and differs depending on whether the appellant is an individual or a company. Beyond the fee you're paying for a planner to prepare evidence, usually a solicitor, and often a barrister for the hearing if it gets that far. It is not cheap. It is also, on a stalled application with real holding costs, frequently cheaper than another eight months of waiting.

When to reach for it, and when not to

I'll be blunt about the trade-off, because the marketing on this topic tends to come from firms who are paid to run appeals.

Reaching for it makes sense when the delay itself is the problem and there's no substantive dispute — the file has been reassigned twice, nobody can tell you what's outstanding, and the holding cost is real. It also makes sense when the council's position is clear, wrong, and unlikely to move without a third party in the room. And it makes sense when your funding, your option period or your builder's availability has a hard date attached, because those dates don't care whose fault the delay is.

Waiting makes more sense when the council has told you specifically what it needs and you haven't provided it, when the objection is from neighbours whose concerns are legitimate and could be designed around, or when you're inside a few weeks of a determination that's likely to be favourable. Appealing over the top of an officer who was about to recommend approval is an expensive way to make a point.

There's a middle path most people don't know exists. Lodging an appeal to preserve the right does not oblige you to fight it, and councils regularly determine applications after an appeal is filed, at which point the matter resolves. Filing is a way of putting a date on something that has no date. It's also, unavoidably, a signal — and if you intend to keep dealing with that council on future projects, that's a factor worth weighing rather than dismissing.

The other thing to keep in view: appeals aren't only for applicants. Objectors to designated development who made a submission have their own, much shorter window — 28 days from notice of the determination — which is worth knowing if you're the one being objected to.

What it does to the numbers

Time is a line in the feasibility, not a footnote to it. Interest on land and construction funding, rates, insurance, holding costs on an option period, escalation in build cost over the delay, and — on a rising or falling market — movement in the end value you were counting on. On a small residential project, a year of unplanned delay routinely costs more than the entire approval process was budgeted at.

That's the calculation that ought to drive the decision, and it's the one almost nobody does. People decide whether to appeal on how they feel about the council. They should be deciding on what twelve more months costs them against what an appeal costs them.

It matters at the other end too. If your plan is selling with a DA approval attached, the approval is the product, and an application that has been sitting undetermined for a year is worth nothing to a buyer. A consent obtained through the court is a consent. It carries no asterisk and it sells the same as any other.

If you're stuck right now

Find your lodgement date on the portal and ask the council, in writing, how many days of the assessment period have elapsed and how many are paused. Ask for the specific outstanding items. Put both requests in one email so there's a record.

Work out your deemed refusal date and mark the date six months after it, because that's the one that expires.

Then get a planner who runs appeals to look at the file before you decide. An hour of that is cheap, and the answer is often that the application is fine and the council is simply overloaded, which is the case where the appeal path does the most good and does it fastest.

And keep the pathway question in view from the start. Plenty of applications that grind for a year in DA assessment would never have been DAs at all had the scheme been shaped a little differently — which is the whole argument for settling the CDC versus DA question before the drawings are finished rather than after.

PropertyThrive assesses sites before anyone lodges anything, which is the cheapest place to solve this. Book a free assessment and you'll get an honest read on the pathway, the likely programme and what the site can carry, back within 24 hours.