Deemed Refusal

[Mark C]

For those budding developers out there who want to know what the DA process can throw up.

I've just started legal action to get a Deemed Refusal from council for an application I have submitted. The council for reasons known only to them have failed to approve or refuse my application leaving me with no other option but legal recourse.

A Deemed Refusal is what I can claim because the council have not respond to my application within the legislated time frames as detailed under IPA (Integrated Planning Act 1997). I will appeal this refusal and get it into a court to have a judge decide.

Once I get this into court (3-4 weeks) a judge will demand council to give me a response, either an approval or a refusal and reasons why within another 2 - 4 weeks. At this point I book court time to have the application determined by a Planning & Environment judge if any issues are raised.

And mean while everyones wondering how to fix, and who's to blame for the affordability problem?

Mark C

 

[boomtown]

Cant you just resubmit the application instead of going to court? And ask them nicely to please look at it this time.

 

[MichaelW]

Hi Mark,

We had to go through the NSW LEC under deemed refusal in order to get our DA approved for the Mona Vale MUH development. Thankfully Kay is a qualified solicitor and topped both local government law and environmental law at Uni so she self represented us successfully. Otherwise it can be a very expensive process if you require legal counsel.

Let me know if you want to have a chat to Kay about the representation process.

Also, it may not be a judge depending on the class of action. Even our MUH Mona Vale development was a Class 1 action so actually only required a commissioner and not a judge. And its not just a case of the LEC ordering council to make a determination. You have to run through a convoluted legal process and represent your DA and address every single one of councils concerns. They will raise these in advance of the meeting with the commissioner formally and send a copy to your legal representation. You then need to address these each in turn.

Kay is also just starting out as a sole practitioner representing developers in class 1 actions for half the normal legal rates if you're looking for quality affordable representation. PM if interested.

Either way, all the best! And enjoy the ride.

Cheers,
Michael

 

[Mark C]

BT I have spent over $1.1m and 18 months trying to get this DA approved I don't intend on doing it again. Court action despite popular conception can actually be a welcomed position to be in.

Michael thank you for your offer, at this stage council have not refused the application. I wish they would then I would have something to appeal, or at least something I could change about the application. The application is fully compliant to all town planning requirements, Council have simply decided not to make a decision.

I have several lawyers that work for me in various projects, in this case I have a law firm that specialize in IPA law. It certainly isn't cheap but compared to paying for holding costs on several million dollars worth of development land it's a small fee.

Mark

 

[Xenia]

welcome to the world of developing

just keep in mind that you are getting paid for going through all this because the wins at the end are huge.

If it was easy everyone would do it!

 

[letiha]

One of the added bonuses of being a lawyer...self representation.

 

[Dazz]

Ya reckon letiha ?? I think you grossly over-exaggerate your ability.

The "law" is a fairly wide field, you'd have to agree.


I'm a qualified engineer, but only in a specialised discipline.

I wouldn't even attempt to design a bridge, build a road, design a motor, drive a train, design a ship or any of the other thousand things qualified engineer's do. Wouldn't have the first clue.

I'm sure your faculty graduates are just the same as our faculty graduates, each only very good at a very small window of their degree.

 

[letiha]

Dazz, i agree to some degree. With Law you have to study some many area's both in your degree and post graduate study to be able to practice. I would say I have a fairly good grasp at several area's.

But I think I would have the benefit of knowing where to look as far as case law and legislation, or have people i know who i can speak to regarding their specialty and vice versa.

 

[craigb]

sorry to hear your news, last time i ha somthing silly, like this happen i said i will sit hear and the only way i am leaving is if you cary me out, i eventualy got the head honcho's att and he was able to see it my way, although it was quite trivial.
all of this down time and i bet the land is burning up $$, and i hear so many times you builders/developers make so much money, if they only knew.

 

[fernfurn]

Mark in Victoria the council have to respond within a certain time and if they dont you can take the approval straight to VCAT. Is this different in NSW

 

[Mark C]

Celica,

Council here also have to respond within timeframes however they have many opportunities to extend the decision making period as detailed under IPA, they have done this successfully for some time. As at the 7th of August they ran out of extensions and they have just simply stopped responding to me without reason.

To force a decision I have to pretend that they have in fact refused the application and appeal this decision via the planning and environment court.

I am however reasonably confident that the issue is personal and not based on any town planning principles. It has been verbally explained that councils town planner has a problem with the onsite water purification plant witch is designed into the development, the water recycling plant is fully licensed and approved by both EPA (State agency) and EPBC (federal agency). With duel retic the subdivision will have a 65% reduction in mains water usage and have no outside water restrictions.

It has been stated to me that council have an issue with this as I will in effect have a 100% offset for sewer head works (contributions) and have a significant reduction in main water headworks. This could amount to over $1.5m in fees not being paid to council if this development is approved.

Mark

 

[evand]

Same result as having a law degree. LOL

last time i ha somthing silly, like this happen i said i will sit hear and the only way i am leaving is if you cary me out, i eventualy got the head honcho's att and he was able to see it my way, although it was quite trivial.

I have often found that highly qualified academics are the dumbest people.

 

[boomtown]

the onsite water purification plant witch is designed into the development, the water recycling plant is fully licensed and approved by both EPA (State agency) and EPBC (federal agency). With duel retic the subdivision will have a 65% reduction in mains water usage and have no outside water restrictions.

It has been stated to me that council have an issue with this as I will in effect have a 100% offset for sewer head works (contributions) and have a significant reduction in main water headworks. This could amount to over $1.5m in fees not being paid to council if this development is approved.

Very impressive.

 

[Mark C]

Council have just advised of submitters details to the application, I now only have 10 business days to be able to get in front of a judge to demand a response from council.

Since last post council's town planner has sent correspondence advising that the reason why they will not approve the application is because of the onsite water purification plant. Their advise is to remove the water recycling system and connect to councils sewerage system then they will approve it. The advise goes as far to mention the Lord Mayor has chaired a specially convened meeting to discuss this application and also backs the removal of the water recycling plant.

A very strange request as the water recycling system has been part of the application from the beginning and has all necessary approvals (EPA ERA 15(b) license). I have even received federal approval from the EPBC. Aside from this the water recycling plant dose not fall under council juristrisction.

The only reason I can see for this request is if I was to connect to council system I will have to fork out around $1.5m in fees in councils favor and pay $1m in costs to install new sewerage line which is donated to council on completion.

I have to remind myself that I am aiming to produce 78 low cost town houses with signification sustainable initiatives. Not as it seems what council is looking for.

Mark

 

[evand]

That's exactly the same as making stacks of money in another area and hiring a lawyer. If you get my point.

I knew an ethnic family in Sydney that made so much money wholesaling bananas (of all things) it wasnt funny. They could buy and sell most lawyers in Sydney.

One of the added bonuses of being a lawyer...self representation.

 

[tom1000000]

I have to remind myself that I am aiming to produce 78 low cost town houses with signification sustainable initiatives. Not as it seems what council is looking for.

Mark

This is disgraceful. Bloody council is just pissed off because they won't get $$$$. As for the positive affect on the community, that does not make a difference to the council.

Maybe you should go on Today Tonight / ACA???? Phone them up and see who will pay you the most for the story?




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All information in this post may be incorrect or misleading, do not rely on it.

 

[Mark C]

Tom,

The lack of education within the planning department is frustrating, one of the issues council has raised is they don't want me to use my recycled water on irrigating the surrounding rehab buffer areas.

Unfortunately as no development is permitted to use potable water for irrigation I would have to buy recycled water from council and truck it in to irrigate rehab areas.

I'm hoping to have this sorted without media involvement, surely common sense will prevail.

Mark

 

[Mark C]

I have a direction hearing in the P&E court tomorrow morning.

We have notified council lawyers that we require an approval or refusal and reason why within 10 business days.

and

A with out prejudice meeting by the 31st October.

Council lawyers have not agreed with our time frames and want more time to review. I have instructed my lawyer to proceed on original time frames.

Will notify what what decision a Judge makes tomorrow.

Mark

 

[Petal]

Well Mark I am sure many on here will be keen to hear how you go with this "bureaucracy gone made" situation of yours.

All the very best to you.

Petal

 

[Belu]

Good luck mate - very interested to hear the outcome!