Lachlan Haskins v Yass Valley Council

Medium Neutral Citation: Lachlan Haskins v Yass Valley Council [2026] NSWLEC 14

Hearing dates: 17 December 2025

Date of orders: 19 February 2026

Decision date: 19 February 2026

Jurisdiction: Class 1

Before: Pritchard J

Decision: The Court makes the following orders:
(1) The Class 1 appeal filed on 6 November 2025 is dismissed.
(2) No order as to costs.

Catchwords: PRACTICE AND PROCEDURE — whether Class 1 appeal filed out of time — whether Council had power to determine review under Division 8.2 of the EPA Act — whether period in s 8.3(2)(a) of the EPA Act had expired — whether there was a changed determination within the meaning of s 8.4 of the EPA Act even though original refusal was upheld — whether review determination was a decision subject to appeal within the meaning of s 8.6 of the EPA Act
COSTS — r 3.7 of the Land and Environment Court Rules 2007 (NSW) — whether fair and reasonable to make a costs order — central issue determinative of the proceedings and preliminary to an evaluation of the merits — conduct of the parties in circumstances leading up to the commencement of the proceedings

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment Regulation 2021 (NSW)
Land and Environment Court Rules 2007 (NSW)

Cases Cited: Congregational Christian Church Samoa Parish of Sydney v Georges River Council [2017] NSWLEC 71
Hainbury Pty Ltd v Campbelltown City Council [2007] NSWLEC 713
Hill v Zuda Pty Ltd (2022) 275 CLR 24; HCA [2022] 21
Johnson Property Group Pty Ltd v Lake Macquarie City Council (No 2) [2020] NSWLEC 42
Lakeman v Ku-ring-gai Council [2013] NSWLEC 14
Urban Link Architects Pty Ltd v City of Parramatta Council (2024) 263 LGERA 21; [2024] NSWLEC 113
Winten (No 21) Pty Ltd v Lake Macquarie City Council [2024] NSWLEC 24

Category: Procedural rulings

Parties: Lachlan Haskins (Applicant)
Yass Valley Council (Respondent)

Representation: Counsel:
A Pearman (Applicant)
L Mulligan, solicitor (Respondent)
Solicitors:
Gadens (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/00429825

JUDGMENT

Introduction

1. By notice of motion filed on 8 December 2025, the respondent in these proceedings and applicant on the motion, Yass Valley Council (Council) seeks to strike out a Class 1 appeal brought by the applicant in these proceedings and respondent on the motion, Lachlan Haskins (the applicant) on the ground of want of jurisdiction. Section 8.10(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) provides relevantly that an appeal against a decision of a consent authority under Part 4 of the Act may be made only within 6 months after the date the decision appealed against is notified or registered on the NSW planning portal.

2. The Class 1 application was filed on 6 November 2025 pursuant to s 8.7 of the EPA Act, and seeks to appeal Council’s “actual refusal of Review of Determination for Development Application No: DA230239B dated 26 June 2025 for the construction of two serviced apartment and storage shed with installation of an onsite sewage management facility at 2 Keirs Road, Murrumbateman 2585 (being Lot 2 of DP 797830)”.

Background

3. On 29 June 2023, the applicant lodged Development Application No DA230239 (the DA) with Council pursuant to s 4.12 of the EPA Act seeking development consent for the construction of two serviced apartments and storage shed with installation of an onsite sewage management facility at 2 Keirs Road, Murrumbateman NSW 2585 (Lot 2 of DP 797830) (the site). The site is approximately 1.5ha in area and is zoned RU1 Primary Production. The DA was accompanied by two plans.

4. On 25 July 2024, Council refused the DA pursuant to s 4.16 of the EPA Act (the refusal).

5. On 14 August 2024, the applicant submitted a request for a review pursuant to Division 8.2 of the EPA Act (the request for review or the 8.2 request).

6. On 27 June 2025, Council informed the applicant that the request for review of the refusal was presented to Council on 23 June 2025, and Council had determined to uphold the refusal (the review determination). Enclosed was a notice of determination with the date of determination given as 26 June 2025.

7. On 27 June 2025, the review determination (or purported review determination) was registered on the NSW planning portal.

8. On 6 November 2025, the applicant commenced the Class 1 appeal from Council’s review determination.

9. In submissions in support of its strike out motion, Council contends that the determination of the request for review occurred some 10 months and 29 days after the DA was refused by Council, “far beyond the 6 months allowed by s 8.10 of the EPA Act”.

Issues for determination

10. The issue which arises on Council’s motion is whether the applicant brought the Class 1 appeal within time pursuant to s 8.10(1)(a) of the EPA Act.

11. At the hearing on 17 December 2025, the parties raised two sub-issues. Council identified the two sub-issues as follows:

12. as a matter of law, whether Council had power to review the refusal after the period in s 8.3(2)(a) of the EPA Act had expired (s 8.3(2)(a) providing that a determination decision cannot be reviewed (by a consent authority) after the period within which an appeal may be made to the court has expired if no appeal was made) (I****ssue 1);

13. if the answer to that question is “yes”, whether as a matter of fact the review determination “changed” the refusal within the meaning of s 8.4 of the EPA Act, with the result that the determination was “changed on review” within the meaning of s 8.5(4) such that the changed determination replaced the earlier refusal on the date the review determination was registered on the NSW planning portal (I****ssue 2).

14. The applicant also raised a third issue:

15. if the question of fact raised by Issue 2 is resolved against the applicant, whether the review determination was a “decision” subject to appeal to the Court within the meaning of s 8.6 of the EPA Act (I****ssue 3).

Relevant legislative provisions

13. Part 8 of the EPA Act relates to reviews and appeals. In Division 8.1 “Introductory”, s 8.1 provides the following definitions of “appeal” and “review” within Part 8:

8.1 Definitions: Part 8

In this Part—

appeal means an appeal to the Court under Divisions 8.3, 8.4, 8.5 and 8.6.

Note.

Section 1.4 defines Court as the Land and Environment Court.

review means a review by a consent authority under Division 8.2.

14. In Division 8.2 “Reviews”, s 8.2(1)(a) provides that the determination of an application for development consent by a council is subject to review.

15. Section 8.3 relevantly provides in relation to the application for and conduct of a review as follows:

8.3 Application for and conduct of review

(1) An applicant for development consent may request a consent authority to review a determination or decision made by the consent authority. The consent authority is to review the determination or decision if duly requested to do so under this Division.

(2) A determination or decision cannot be reviewed under this Division—

(a) after the period within which any appeal may be made to the Court has expired if no appeal was made, or

(b) after the Court has disposed of an appeal against the determination or decision.

(3) In requesting a review, the applicant may amend the proposed development the subject of the original application for development consent or for modification of development consent. The consent authority may review the matter having regard to the amended development, but only if it is satisfied that it is substantially the same development.

…

16. Section 8.4 provides that after conducting its review of a determination or decision, the consent authority “may confirm or change the determination or decision”.

17. Section 8.5 provides the following relevant miscellaneous provisions in relation to reviews:

8.5 Miscellaneous provisions relating to reviews

…

(3) If a decision to reject an application for development consent is changed on review, the application is taken to have been lodged on the date the decision is made on the review.

(4) If a determination is changed on review, the changed determination replaces the earlier determination on the date the decision made on the review is registered on the NSW planning portal.

(5) Notice of a decision on a review to grant or vary development consent is to specify the date from which the consent (or the consent as varied) operates.

(6) A decision after the conduct of a review is taken for all purposes to be the decision of the consent authority.

…

18. In Division 8.3 “Appeals”, s 8.6 relevantly provides which decisions are subject to appeal to the Land and Environment Court:

8.6 Decisions subject to appeal to Court under this Division

(1) A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is (if this Division so provides) subject to appeal to the Court under this Division.

(2) A decision subject to appeal includes a decision made after a review under Division 8.2.

…

19. Section 8.10 relevantly provides the time within which an appeal under Division 8.3 may be made:

8.10 Time within which appeals may be made

(1) An appeal under this Division (except by an objector) may be made only within the following periods after the relevant date (being the date the decision appealed against is notified or registered on the NSW planning portal or the date of deemed refusal under section 8.11)—

(a) 6 months after the relevant date …

Evidence

20. The following factual background is largely derived from the affidavit of Council’s solicitor, Mr Liam Mulligan, dated 8 December 2025; an affidavit of the applicant’s solicitor, Mr Patrick Holland, dated 12 December 2025; and a second affidavit of Mr Holland dated 17 December 2025.

21. The DA which was submitted on 29 June 2023 was submitted with two architectural LMPP/site plans prepared by Design IS dated 10 May 2024 and 3 July 2024. Both sheets included a note about a hardstand filling point to be built adjacent to Murrumbateman Creek, and a nominated location for that hardstand.

22. The DA was exhibited between 10 August 2023 and 29 August 2023, and attracted five submissions relating to:

23. proper use of the site according to its zoning;

24. access concerns;

25. natural hazard (fire and flood) concerns;

26. impact on surrounding agritourism and primary production businesses;

27. environmental impact on riparian zone and species of fauna, and risk of introduction of weeds;

28. historical significance of the site;

29. noise impact concerns;

30. waste management and servicing concerns; and

31. public interest, including real estate interests, rights of way and litter.

32. On 20 September 2023, officers of Council attended the site for an inspection.

33. In an undated assessment report, the DA was recommended for approval by Council.

34. On 25 July 2024 at its ordinary meeting, Council resolved to refuse the DA on the following grounds:

Inappropriate use of RU1 zoned land;

Unacceptable adverse effect on surrounding primary producers;

Not compatible with the primary producers zone objectives of RU1; and

The development presents an unacceptable land use conflict with the adjoining/nearby agricultural uses including a vineyard and extensive grazing.

26. On 14 August 2024, the applicant made a request for a review pursuant to Division 8.2 of the EPA Act.

27. The request for review was exhibited between 13 and 27 September 2024, and attracted seven submissions relating to:

28. proper use of the site according to its zoning;

29. access concerns;

30. natural hazard (fire and flood) concerns;

31. impact on surrounding agritourism and primary production businesses;

32. environmental impact on soil, riparian zone and species of fauna;

33. historical significance of the site;

34. visual impact concerns;

35. waste management and servicing concerns;

36. insufficiency of public notification; and

37. public interest.

38. The DA notification had attracted five submissions. The noise impact concerns raised in submissions in relation to the original notification were replaced with visual impact concerns raised in submissions in relation to the request for review.

39. On 15 November 2024, Council sent the applicant a request for information (the RFI) requesting that three matters be addressed that had not been addressed in the original DA:

40. a written response to issues identified in the submissions received following public notification of the request for review;

41. a “test of significance” prepared by a suitably qualified person in accordance with s 7.3 of the Biodiversity Conservation Act 2016 (NSW) focusing on “areas of disturbance resulting from the proposed development and the potential for Golden Sun Moth and its habitat” and whether the biodiversity offsets scheme applied; and

42. a response to variations to the changed Yass Valley Development Control Plan 2024 (the DCP), the DA having been assessed against the former DCP.

43. On 18 February 2025, Council referred the 8.2 request to the Rural Fire Service (the RFS) for concurrence on the basis that the proposed development was for the purpose of tourist accommodation, and was therefore a special fire protection purpose.

44. On 18 February 2025, the applicant submitted a modified plan to Council as part of the request for review (the modified plan). The modified plan was different from the two plans originally submitted with the DA. First, the nominated hardstand area had been digitally edited out in response to environmental concerns due to its location within the riparian zone, although the note about the hardstand area being built remained in the modified plan in the same form as the two plans which accompanied the DA. Secondly, it included the installation of a new fence along the northern boundary along with a landscape buffer. The removal of the hardstand area had been the subject of email exchanges between the applicant and the Development Assessment and Planning Coordinator for the RFS, Mr Winter, between 6 and 18 February 2025.

The application was referred to the NSW Rural Fire Service (RFS) for concurrence under section 100B of the Rural Fires Act 1997 as the proposal is for the purposes of tourist and visitor accommodation. Following revisions to the proposal, the RFS have issued general terms of approval which can be included in any Development Consent that may be issued.

37. The agenda papers for Council’s meeting on 23 June 2025 contained the following in relation to the referral to the RFS.

The proposed tourist accommodation is a 'special fire protection purpose' (SFPP) for the purposes of the Rural Fires Act 1997, which requires the concurrence of the New South Wales Rural Fire Service (RFS). The original DA was referred to the RFS in General Terms of Approval (GTAs) were issued.

The application for review was referred to the NSW RFS as the proposed hardstand area was identified for removal, in response to environmental concerns due to its location within the riparian zone. Revised GTAs were issued by the RFS with the only change being the reference to the updated site plan. The revised GTAs can be included in a development consent to require compliance with Planning for Bushfire Protection 2019.

38. The determination made by Council was to uphold the initial refusal of the DA for the following reasons:

a. The proposed development is not consistent with the objectives of the RU1 primary zone under the Yass Valley Local Environmental Plan (LEP) 2013. These objectives include protecting agricultural land, minimising land use conflict, and maintaining the rural character of the area. New commercial uses, such as serviced apartments, can undermine these aims and are therefore inappropriate in zones intended primarily for sustainable primary production.

b. This development is likely to negatively impact regionally significant tourism and agricultural business, including viticulture operations that may be adversely impacted by incompatible neighbouring uses.

c. In accordance with s4.15(1)(e) of the Environmental Planning and Assessment Act 1979, the proposed development is not in the public interest. It has attracted substantial community opposition and does not demonstrate a clear long-term benefit to the Murrumbateman community.

39. On 27 June 2025, Council issued a notice of determination in relation to the request for review which was registered on the NSW planning portal on 27 June 2025.

40. On 6 November 2025, the applicant filed a Class 1 application commencing these proceedings. On 25 November 2025, Council’s solicitor Mr Mulligan wrote to the applicant’s solicitor Mr Holland raising the issue that the proceedings had not been commenced within time and were liable to be struck out. Council invited the applicant to discontinue the proceedings with no order as to costs. Council considered that the proceedings had been commenced out of time because:

4.1 Council’s determination of the 8.2 Request was beyond power as the time in which that application could have been validly determined had expired; and

4.2 as the outcome of the 8.2 Request was to confirm and uphold the refusal of the DA, there was no ‘change’ in the determination that would cause the date of determination to change from 24 July 2024 to 25 July 2025 and thus bring the proceedings within time.

41. In relation to Council’s position that the determination of the request for review was beyond power, Mr Mulligan wrote:

5 In respect to the conduct of reviews, 8.3(2) relevantly provides:

(2) A determination or decision cannot be reviewed under this Division—

(a) after the period within which any appeal may be made to the Court has expired if no appeal was made, or

(b) after the Court has disposed of an appeal against the determination or decision.

[our emphasis]

6 In Hainbury Pty Ltd v Campbelltown City Council [2007] NSWLEC 713 at [16], Lloyd J held (in respect to the previous form of section 8.3(2), 82A(2A)) that the section operated to prevent both the making of a request for review and the determination of an extant request after the relevant time period had expired.

7 The construction adopted by Lloyd J was cited with approval by Pain J in Lakeman v Ku-ring-gai Council [2013] NSWLEC 14 at [33], notwithstanding the changes to the EPA Act that had occurred since the decision in Hainbury*,* and was recently applied in Congregational Christian Church Samoa Parish of Sydney v Georges River Council [2017] NSWLEC 71. There is no material difference between s82A(2A) and the current section 8.3(2) that would cause the reasoning in Hainbury and Lakeman to apply differently.

8 The Court has also recently noted that the lodgement of a Class 1 Appeal after a request for a review was made is the mechanism that will keep a review request 'alive' and allow the request to be determined after the expiry of the period in section 8.3(2)(a) – see Winten (No 21) Pty Ltd v Lake Macquarie City Council [2024] NSWLEC 24.

9 The period in which 'any appeal may be made to the Court’ is 6 months from the date of the refusal of the DA: s 8.10, EPA Act. The determination of the 8.2 Request occurred some eleven months after the refusal of the DA. As a consequence, the determination (validly or otherwise) of the 8.2 Request could not have had the legal effect of providing a 'fresh' appeal right in respect of the Proposal.

42. On 1 December 2025, the applicant’s solicitor Mr Holland responded to Mr Mulligan’s letter of 25 November 2025 stating, inter alia:

… despite referring to the date that the Respondent received the Applicant's request for a review of the Respondent's refusal of Development Application No. DA230239 (Development Application) pursuant to s8.2 of the Environmental Planning & Assessment Act 1979 (EP&A Act) on 14 August 2024 you have not identified when the Respondent publicly notified this application. Based on our enquiries we understand this occurred between 13 September 2024 and 27 September 2024. In our opinion this along with the subsequent protracted assessment process which formed part of the Respondent's ultimate determination to refuse the s8.2 review application has greatly disadvantaged the Applicant.

Further no explanation is given in your correspondence as to why it took the Respondent a further eight months from the end of the public exhibition period of the s8.2 review application to assess and determine the s8.2 review application. It is of concern to the Applicant that in support of your submission that the Applicant's proceedings are out of time and beyond power is because 'the time in which that application could have been validly determined had expired'. Through no fault of the Applicant but only due to the dilatory conduct of the Respondent.

We draw to your attention that following submission of the s8.2 review application in your correspondence you have made no reference to the fact that following receipt of the s8.2 review application the Respondent issued the Applicant with a Request for Information (RFI). This RFI created an additional component of assessment of the Development Application which had not been required by the Respondent as part of the original assessment of the Development Application and the first the Applicant became aware of this request was after the Applicant had submitted the s8.2 review application.

…

Following receipt of the RFI the Applicant instructed Umwelt (Australia) Pty Ltd to prepare a report titled Ecological Assessment 2 Keirs Road Murrumbateman which was submitted to the Respondent on or about April or May 2025 (Umwelt Report). We note that the Umwelt Report was subsequently referred to Department of Climate Change, Energy, the Environment and Water (DCCEEW) by the Respondent for review.

…

Based on the separate referrals to the RFS and DCCEEW combined with consideration of seven submissions received as part of the public exhibition of the s8.2 review application and combined with the updated assessment report represents a change to the Respondent's determination to refuse the Development Application on 25 July 2024. Based on the above it must be accepted that the reasons for refusal of the s8.2 review application differ significantly from the reasons given by the Respondent for the original refusal of the Development Application on 25 July 2024. In this regard we refer you to paragraphs a, b and c of the Respondent's determination to refuse the s8.2 review application which are as follows:

…

The above reasons are materially different to the four relatively simple reasons given by the Respondent in its notice of determination to refuse the Development Application on 25 July 2024 most notably that this determination made no reference whatsoever to the development not being in the public interest nor did it contain any direct reference to what we regard as adverse impacts on 'regionally significant tourism'. For these reasons and with reference Pritchard J's observations in Urban Link Architects Pty Ltd v City of Parramatta Council [2024] NSWLEC 113 because we consider the Respondent's determination of the s8.2 review application is a 'fresh or new decision'.

For the reasons outlined above we are of the opinion the relevant decision date for the purposes of these proceedings is 23 June 2025 and we confirm the Applicant will not discontinue these proceedings. We advise that in the event the Respondent files a Notice of Motion seeking to have the proceedings struck out we will rely on this correspondence for the purposes of costs in the event the Respondent's Notice of Motion is dismissed.

Issue 1: Whether Council had power to review the refusal after the period in s 8.3(2)(a) of the EPA had lapsed

43. In relation to Issue 1, it does not appear to have been in dispute that more than six months had elapsed between the initial refusal of the DA on 25 July 2024, and registration of the review determination on the NSW planning portal on 27 June 2025. The question which arises is whether that period was such as to offend the provision in s 8.3(2)(a) of the EPA Act that a determination or decision cannot be reviewed under Division 8.2 after the period within which any appeal may be made to the Court has expired if no appeal was made. If that period had expired, Council submitted, the refusal of the DA could not be reviewed under Division 8.2. Council contended the appeal was “clearly against the refusal of the 8.2 Review, not the DA”, and the underlying premise of the appeal was that Council’s determination of the s 8.2 request on 23 June 2025 replaced Council’s decision to refuse the DA on 25 July 2024. This could not be the case, Council submitted, because of s 8.3(2)(a).

44. In Hainbury Pty Ltd v Campbelltown City Council [1] (Hainbury), Lloyd J said at [16] in relation to s 8.3(2) of the EPA Act (in its previous form, 82A(2A)):

Section 82A(2A) refers to an appeal under s 97. The case here is that there is no valid appeal against the determination; that is, there was no right in the appellant to bring an appeal, the time under s 97 having expired. The consequence, in my opinion, is that the request for a review cannot be determined and there is no power to do so.

45. This statement was quoted with approval by Pain J in Lakeman v Ku*-ring-*gai Council [2] (Lakeman) at [32] to [33], notwithstanding the changes to the EPA Act that had occurred since Hainbury introducing an obligation on a council to consider a request for review in s 82(2A)(2) (now contained in s 8.3(1)). Her Honour said at [28]:

the scheme of s 82A in its current form imposes an obligation on a council to undertake a review (s 82A(2)), a provision that is central to the Applicant's arguments. No time frame for a council doing so is specified in the Act or Regulation nor is there a deemed refusal period. Section 82C(3) provides for the making of regulations which specify the time within which an application and review must take place. This has not occurred. Section 82C(3) permits the making of regulations which provide that a failure to determine an application within a period prescribed is taken to be a decision refusing the application. This has also not occurred. In the absence of other provisions concerning timing of a review, the only reference to timing is s 82A(2A) whereby a determination cannot be reviewed after the time limited for the making of an appeal under s 97 expires if no such appeal is made against the determination. Subsection (b) is not relevant to this case. That statutory scheme does not support an inferential finding that lodging a request for a review alone preserves an appeal right under s 97(1).

46. Hainbury and Lakeman were cited with approval by Pain J in Congregational Christian Church Samoa Parish of Sydney v Georges River Council [3] (Congregational Christian Church). In that case, the council had informed the applicant that a s 82A review would not likely be assessed within the six-month statutory timeframe, but the application was nonetheless lodged. Council later wrote to the applicant advising that it would not be able to complete the application in time, and that it would not have power to determine the application after the statutory period had expired unless an appeal was lodged in the Land and Environment Court. The period expired, and a Class 1 appeal was lodged. The applicant submitted that the time for filing a Class 1 appeal ran until the s 82A review was determined. Pain J rejected this submission at [14] to [15]:

No specific time limit to determine a s 82A review is specified in the EPA Act. The lodging of a s 82A review within six months of the refusal of a Class 1 appeal [4] does not extend the time for lodging an appeal under s 97(1). That construction is supported by my decision in Lakeman v Ku-ring-gai Council [2013] NSWLEC 14 at [24]-[35] which considered the precise question arising in this motion after the introduction of s 82A(2A)(2) imposing a duty on a council to consider a request for a review in 2011. …

Lloyd J in Hainbury Pty Ltd v Campbelltown City Council [2007] NSWLEC 713 at [9]-[12] considered s 82(2A) before s 82(2A)(2) was introduced. My approach in Lakeman is supported by Lloyd J's findings albeit the statutory context was not identical. I note for completeness that the time period specified ins 97(1) in Hainbury was 12 months ...

47. Council submitted that there is no difference between s 82(2A) which applied previously and s 8.3(2) which applies presently that would cause the reasoning in Hainbury*,* Lakeman*, and Congregational Christian Church* to apply differently. Council accepted that the circumstances in those cases were not identical to those in the present case, as in those cases the council either rejected or failed to determine the review application. However, Council submitted that the Court should adopt Lloyd’s construction of the precursor to s 8.3(2) in Hainbury at [16] to the effect that if the time within which an appeal could be brought to the Court has expired, “the request for a review cannot be determined and there is no power to do so”.

48. Council referred to the following definitions of “review” in the Macquarie Dictionary: (1) "a judicial re-examination as by a higher court, of a decision or proceedings in a case (noun)"; and (2) “to reexamine judicially (verb)”. In Council’s submission, as both a noun and a verb, the word "review" used in Division 8.2 captures both the process of reviewing a decision, and the product of the process. It was submitted to be a word of broad meaning, and that its range of meanings should not be restricted when there is no reason in the statutory context to do so. The phrase "cannot be reviewed" in s 8.3(2) was submitted to prohibit both the process and the product of the process after the relevant date has passed. To construe the word “review” to include the noun but not the verb, would “do violence” to the language employed by Parliament.

49. Consistently with Hainbury*,* Council submitted that the effect of s 8.3(2) is that after the period specified in s 8.3(2)(a) expires (namely, the period within which any appeal may be made to the Court if no appeal is made), there is no power either for:

50. an applicant to make a request for review; or

51. a consent authority to determine an extant request for review.

52. As no appeal to the Court was commenced within the period of six months permitted under s 8.10(1)(a), the consequence was that Council could not lawfully determine the review after 25 January 2025 (being the date 6 months after the refusal of the DA on 25 July 2024) as there was no power to do so. For reasons of comity, Council submitted, the Court would not depart from the reasoning in Hainbury and Lakeman unless there were "compelling reasons to do so": Hill v Zuda Pty Lt**d. [5]

53. While the present case was similar to Urban Link Architects Pty Ltd v City of Parramatta Council [6] (Urban Link), Council pointed to a “critical distinction” in that in Urban Link the review application was determined within the period in s 8.3(2)(a), that is, within the period any appeal may be made to the Court. This meant that the Court's ultimate finding that the determination of the review replaced the original determination of the DA (notwithstanding that the review determination was to confirm the refusal) was an “open finding of fact”. In the present case, however, the refusal could not be “changed on review” within the meaning of s 8.5(4) as the determination was “statutorily barred from being reviewed”. Accordingly, Council submitted, whether or not the review resulted in a new or changed decision was irrelevant. No determination of the review could have validly been made as at 23 June 2025 because the power to do so had expired six months after the refusal of the DA on 25 July 2024.

The situation is that the 82A review application has been made but not determined. The council now says we can't determine it because of the operation of s 82(2A). If they're right, that's an end to the matter. But if they're not right, and my submission in relation to the way in which one reads (2) and (2A) together is correct, council could still determine the 82(2A) review. And if it did, on the judgment your Honour has just given there would then be a right of appeal.

62. In relation to that submission, Lloyd J said at [16]:

The case here is that there is no valid appeal against the determination; that is, there was no right in the appellant to bring an appeal, the time under s 97 having expired. The consequence, in my opinion, is that the request for a review cannot be determined and there is no power to do so. [8]

63. That is, his Honour concluded that Council had no power to determine the review regardless of the fact that if it did so, it might result in a “changed determination”, and hence a renewal of the time period in s 82(2A).

64. The result contended for by the applicant here was also rejected in Lakeman after the EPA Act had been amended to introduce an obligation to conduct the review in s 82(2A)(2). Pain J at [34] rejected the applicant’s arguments that the review request extended the Class 1 appeal period in s 97(1). At [28], her Honour said that in “the absence of other provisions concerning timing of a review, the only reference to timing is s 82(2A)”, and that this did “not support an inferential finding that lodging a request for a review alone preserves an appeal right under s 97(1)”.

65. The result contended for by the applicant was also rejected by her Honour in Congregational Christian Church, where the applicant filed an appeal after the time to appeal had expired, and submitted that the time for the appeal ran until the s 82A review was determined. Consistently with Hainbury and her decision in Lakeman, Pain J rejected that submission, saying at [14]: “No specific time limit to determine a s 82A review is specified in the EPA Act. The lodging of a s 82A review within six months of the refusal of a [development application] does not extend the time for lodging an appeal under s 97(1)”.

66. As noted above at [59], the statutory provisions considered in Hainbury, Lakeman and Congregational Christian Church had not materially changed as at the date of the present Class 1 appeal. It remains the case that the only reference to the timing of a review is in s 8.3(2). It is true, as submitted orally by the applicant, that Lakeman and Congregational Christian Church were not concerned with an “amended application”. However, the reasoning in those cases applies also to circumstances in which, as here, the applicant has with its request for review provided further materials. I do not consider that the period within which an appeal may be made to the Court is extended by the lodging of an application for review, albeit accompanied by material which was not part of the original DA.

67. I have accepted Council’s submission that notwithstanding that an amended development may have come forward through the review process, Council had no power to conduct the review, the period within which an appeal from Council’s refusal of the DA on 24 July 2024 may be made to the Court having expired on 25 January 2025. The Class 1 appeal was commenced on 6 November 2025, more than 6 months after the refusal of the DA was notified and registered on the NSW planning portal on 25 July 2024. The power to determine the review having been exhausted, there was no changed determination made within power which was capable of attracting the operation of s 8.6(2).

Issue 2: Whether the review determination resulted in the refusal being “changed on review” within the meaning of s 8.5(4) of the EPA Act

69. Having decided Issue 1 in favour of Council, it does not strictly arise to decide Issue 2. Nonetheless, I will address the parties’ submissions shortly.

70. In Lakeman, at [30], Pain J said as follows in relation to the meaning of a “changed determination” in what was previously s 82D(3), now s 8.5(4) of the EPA Act:

The primary context in which the word "determination" is used in s 82A is to refer to the outcome of the development application determined under s 80(1). There can only be two outcomes of a request pursuant to s 82A(4A). That is, a council "may confirm or change the determination". Where the council confirms the determination, the only "determination" is the original outcome of the development application. Where the council changes the determination, however, s 820(3) applies such that "the changed determination replaces the earlier determination as from the date of review." In my view, a "changed determination" as referred to in s 82D(3) is one that modifies the outcome of the development application by either refusing a development application that was approved, approving a development application that was refused, or changing the conditions imposed on an approval of a development application. In those circumstances, the "determination" of the development application is the changed determination resulting from the s 82A review.

71. Council submitted that in Urban Link, the Court identified four factors (at [37]) leading to the conclusion that a determination on review changed the outcome of an earlier decision to refuse consent, notwithstanding that the determination on review was also to refuse consent. Those factors were submitted to be:

(a) a changed date of determination between the refusal of the DA and the review determination; (b) that the development application was amended on review; (c) that the reasons for refusal varied between the refusal of the DA and the review; and (d) that the notice of determination for the review indicated that it was a "refusal of consent" rather than a decision to uphold the earlier determination.

72. Dealing with each factor, Council submitted:

(a) the date of the refusal of the DA and the determination of the 8.2 review were different, but that will be the case in every case and this is a factor to which the Court would give “very little or zero weight”; (b) the DA was amended in a very minor way between the refusal of the DA and the determination of the 8.2 review as the only amendment made to the DA between refusal and the 8.2 review was the deletion of a small area of hardstand. The other elements of the DA remained unchanged; (c) the reasons for the refusal of the DA and the 8.2 review were different, but in substance the same, being in both cases: inconsistencies with the RU1 zone objectives, conflicting land uses, and impacts on adjoining properties, businesses and the public interest; and (d) the notice of determination for the determination of the 8.2 review was clear that the original determination of the DA was upheld.

73. Accordingly, Council submitted the outcome of the 8.2 review did not change the determination previously made by Council in the sense required by Lakeman. Nor, applying the factors identified in Urban Link, was there a basis to conclude that the review relevantly changed the determination.

74. The applicant submitted that as in Urban Link, the Court would find that the review determination of 26 June 2025, uploaded to the planning portal on 27 June 2025, changed the refusal to refuse development consent made on 25 July 2024 for the following reasons:

75. the date of the review determination (26 June 2025) was different from that of the refusal (25 July 2024);

76. the review application lodged on or about 13 November 2024 with amended supporting documentation, amended the proposed development the subject of the original DA in material ways;

77. the reasons provided on the review determination were different from those provided in the original determination with reasons a. and b. being differently particularised and a new reason, reason c., being inserted providing that the proposed development was not in the public interest; and

78. there was a material change to the refusal, and the changed determination replaced the earlier determination on the date the decision on the review was registered on the NSW planning portal (27 June 2025).

79. If it were necessary, I would find, as submitted by the applicant, that it is not the case that the only amendment made to the DA between refusal and the purported review determination was the deletion of a small area of hardstand. There was also the addition of a fence and nature buffer. Also, the reasons for the refusal of the DA and the review determination were different. As the applicant submitted, the public interest reason for refusing the Division 8.2 request for review was a new reason. That reason, reason c., was that the proposed development was not “in the public interest”, had “attracted substantial community opposition”, and did not “demonstrate a clear long-term benefit to the Murrumbateman community”. I would find, essentially for the reasons submitted by the applicant, that the review determination resulted in the refusal being changed on review within the meaning of s 8.5(4) of the EPA Act, and in the sense required by Pain J in Lakeman.

Issue 3: Whether the review determination was a “decision” subject to appeal to the Court within the meaning of s 8.6 of the EPA Act

76. In relation to Issue 3 raised by the applicant, namely whether the review determination was a “decision subject to appeal” to the Court within the meaning of s 8.6(2) of the EPA Act, again, I have decided Issue 1 in favour of Council, including the construction of ss 8.4, 8.5 and 8.6 conformably with s 8.3(2)(a). However, I will deal with the parties’ submissions in relation to Issue 3 shortly.

77. As noted previously in relation to Issue 1, in relation to Issue 3, Council submitted that s 8.6(2) did not apply in the circumstances of this case as there was no power for Council to make the “decision” in the first place.

78. In relation to Issue 3, the applicant referred to Johnson Property Group Pty Limited v Lake Macquarie City Council (No 2) [9] (Johnson No 2) where Duggan J at [38]-[39] held that s 8.6(2) operates to ensure, in terms, that a decision made after a review is capable of being the subject of appeal, and in conjunction with s 8.6(1) does not confer a resultant right of review from all decisions made after a review, but “provides to include such decisions where a right of appeal is otherwise conferred by Division 8.3 of the EPA Act.” The applicant submitted that judicial comity suggests that her Honour’s decision in relation to s 8.6(2) would be followed unless it was considered to be wrong (citing Johnson No 2 at [46]). The applicant further referred to s 8.3(3) which provides that in requesting a review, the applicant may amend the proposed development the subject of the original application for development consent, and that the consent authority may review the matter having regard to the amended development “but only if it is satisfied that it is substantially the same development”. There was no suggestion here that the amended development was other than substantially the same development. In these circumstances, the applicant submitted that Council had an amended proposal before it, and made a fresh determination dated 26 June 2025. The applicant having brought the proceedings within six months of 27 June 2025 when the determination was uploaded to the planning portal, the proceedings were commenced in time, and the Court has jurisdiction to determine the Class 1 appeal.

79. In Hainbury, Lloyd J at [12] said in relation to the precursor to s 8.6(2) (s 97(1)):

Section 97(1), I have noted, includes the words, “(including a determination on a review under s 82A)”; that is, if the council determines a review under s 82A then a right of appeal subsists until a period of twelve months has elapsed after the date of that review. This much is confirmed by s 82A(9) [precursor to s 8.5(4)], which is quoted in par [8] above.

80. His Honour continued at [13]: “In the present case the council has not reviewed the development application following the application for a review. That is in my view fatal to the present appeal that has been lodged”. Following his Honour’s judgment, the applicant asked Lloyd J to consider the same submission made by the applicant in this case, namely that on a proper construction of s 82A(2A) (the precursor to s 8.3(2)(a)), the council could still determine the review, and “if it did, on the judgment your Honour has just given there would then be a right of appeal” (at [15]). Lloyd J rejected this submission (at [16]):

Section 82A(2A) refers to an appeal under s 97. The case here is that there is no valid appeal against the determination; that is, there was no right in the appellant to bring an appeal, the time under s 97 having expired. The consequence, in my opinion, is that the request for a review cannot be determined and there is no power to do so.

81. That is, Lloyd J held that the council did not have power to determine the review and thereby reset the clock on the period in s 97 within which an appeal may be made to the Court by providing a “determination on a review” within the meaning of the parentheses in s 97(1) (the precursor to s 8.6(2)).

82. Here both parties accepted that a changed determination as a result of a review under Division 8.2 is subject to appeal pursuant to s 8.6(2). However, I have found, consistently with the reasoning of Lloyd J in Hainbury, that Council did not have power to determine the review and thereby reset the clock on the period within which an appeal may be made to the Court in s 8.10(1). I have determined in relation to Issue 1 that s 8.6(2) had no application as there was no power for Council to make a decision which was capable of being subject to appeal to the Court under Division 8.3, the period within which an appeal may be made to the Court having expired.

83. Accordingly, I have determined to reject the applicant’s submissions in relation to Issue 3.

Costs

84. It follows that Council has been successful on its notice of motion. Council sought an order for its costs of the notice of motion.

85. Rule 3.7(2) of the Land and Environment Court Rules 2007 provides that the Court is not to make an order for the payment of costs in proceedings which include those in Class 1 of the Court’s jurisdiction unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.

86. Rule 3.7(3)(a) provides that a circumstance in which the Court might consider the making of a costs order to be fair and reasonable is:

(a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:

(i) in one way was, or was potentially, determinative of the proceedings, and

(ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings, …

87. As Pain J held in Congregational Christian Church, I have held here that the Class 1 appeal is statute barred. I accept that Council’s notice of motion involved a central issue, a question of law which was determinative of the proceedings, and preliminary to an evaluation of the merits.

88. Rule 3.7(3)(c) provides that another circumstance in which the Court might consider the making of a costs order to be fair and reasonable is:

(c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings,

89. In Congregational Christian Church, Pain J made orders that the self-represented applicant pay Council’s costs after considering the following circumstances at [19]:

Mr Malifa was given ample notice in two emails sent by the Council in January 2017 that the s 82A review could not be determined in time and advised that a Class 1 appeal against the refusal of the DA had to be lodged by the end of February 2017. When the Class 1 appeal was lodged on 16 April 2017 Mr Malifa had been told in a letter dated 29 March 2017 from the Council of its view of how the limitation period operated. The Council wrote again after the Class 1 appeal was commenced in a letter dated 18 April 2017 giving Mr Malifa a further opportunity to discontinue the proceedings with no order as to costs. In an email dated 10 May 2017 (exhibit 1) Mr Malifa was told that the Council intended to rely on Lakeman in the hearing of this motion. Mr Malifa has been given a great deal of advice by the Council which he has not heeded.

90. It is true that it was open for the applicant here to commence a Class 1 appeal to the Court and thereby keep the review period in s 8.3(2)(a) “alive”, as the applicant had been advised to do by Council in Congregational Christian Church, and as the applicant had done in Winten (No 21) Pty Ltd v Lake Macquarie City Council [10] (Winten) (at [12]). In the present case, on 25 November 2025, after the commencement of the Class 1 appeal, Council’s solicitor wrote to the applicant’s solicitor informing the applicant of Council’s view in relation to the operation of the limitation period in s 8.2(3)(a), that Council intended to rely on Hainbury, Lakeman and Congregational Christian Church, of the decision in Winten*,* and giving the applicant the opportunity to discontinue the proceedings with no order as to costs.

91. However, the circumstances of the present motion are different from those in Congregational Christian Church. Here, Council did not inform the applicant that the Division 8.2 review could not be determined within the statutory period, nor that a Class 1 appeal against the refusal of the DA had to be made within the statutory period. Instead, on 15 November 2024, Council requested further information from the applicant. The applicant incurred costs responding to issues identified in submissions received in relation to the request for review, and engaged Umwelt to prepare the Umwelt report. Instead of informing the applicant that it could not determine the review within the statutory period, Council continued to conduct the review and ultimately purported to determine the request for review. There is no evidence capable of establishing that Council raised with the applicant the issue of its power to determine the review until after the commencement of the Class 1 proceedings, with the letter of Council’s solicitor dated 25 November 2025. As set out above at [42], the applicant’s solicitor responded on 1 December 2025 referring to the “protracted assessment process which formed part of [Council’s] ultimation determination to refuse the s 8.2 review application” and which had “greatly disadvantaged the applicant”. As noted by Mr Holland, Council had provided no explanation as to why it took a further eight months from the end of the public exhibition period of the request for review to assess and determine the review, a delay which was through no fault of the applicant “but only due to the dilatory conduct” of Council. Further, as noted by Mr Holland, the RFI created an additional component of assessment of the DA which had not been required as part of the original assessment of the DA, including the applicant having to engage Umwelt. It is a particular oddity of Council’s motion that it seeks on a motion in Class 1 proceedings to impugn the validity of its own purported decision in relation to the request for review.

Orders

93. The Court makes the following orders:

94. The Class 1 appeal filed on 6 November 2025 is dismissed.

95. No order as to costs.

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Endnotes

[2007] NSWLEC 713.

[2013] NSWLEC 14.

[2017] NSWLEC 71.

Council said, and I accept, that this is a typographical error and should be read as “development application”.

(2022) 275 CLR 24; HCA [2022] 21 at [25] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ).

(2024) 263 LGERA 21; [2024] NSWLEC 113.

On 24 November 2025, the Environmental Planning and Assessment Amendment (Planning Systems Reforms) Act 2025 (NSW) was assented to. Instead of s 8.3(2) providing that a “determination or decision cannot be reviewed under this Division”, it now provides that a “request under this division … for a review of a determination or decision must not be made”. The effect of this amendment is that s 8.3(2) now only operates to bar a “request” for a review, and does not constrain Council’s power to conduct a review. However, as this amendment had not commenced at the time of the hearing, the Court must decide the matter in light of the statutory provisions which existed at the time the Class 1 appeal was made.

In Hainbury the applicant also submitted that the legislation was “defective” and did not “fully reflect its intent in the enactment of s 82A”. Lloyd J responded to that submission at [13], declining to “read words into s 82(1) which are not there”.

[2020] NSWLEC 42.

[2024] NSWLEC 24 (Pain J).