New mandatory Guidelines issued for DA withdrawal requests

The Department of Planning & Environment (DPIE) has released the “23A Guidelines on the withdrawal of Development Applications” (Guidelines), which have the stated purpose of addressing the current shortfall in housing by “ensuring the NSW Planning System, including the development assessment processes of councils, is not delaying or hindering the potential pipeline of housing projects”.   The Guidelines note that “of particular concern is the practice of encouraging applicants to withdraw development applications rather than assessing them”. The Guidelines supplement the DPIE’s Development Assessment Best Practice Guide (Best Practice Guide) and can be found here. 

The Guidelines have statutory force

Importantly the Guidelines are not simply another policy document without any statutory force.  The Guidelines have been issued under s 23A of the Local Government Act 1993 (LG Act), which provides as follows (our emphasis added):

(3)  A council must take any relevant guidelines issued under this section into consideration before exercising any of its functions.

Accordingly, the Guidelines are a mandatory consideration which a local Council must have regard to when exercising its development assessment functions.

What do the Guidelines require?

The Guidelines require Councils to be satisfied that a request to withdraw a development application (DA) 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 DAs 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 (Order) as issued under s 9.6(9) of the Environmental Planning & Assessment Act 1979 (EPA 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 DA must be consistent with the Best Practice Guide and not intended to enhance a Council’s performance data outcomes.

Enforcement

According to the Guidelines, the above principles may be enforced in the following ways:

• Compliance with the Guidelines can be taken into account by the Minister when considering whether a Council’s performance under the Order is satisfactory.
• The Minister has the power to review how a Council exercises its planning powers when considering the issue of Directions under Division 9.1 of the EPA Act, including the removal of a Council’s planning powers.

A failure to consider the Guidelines when Council is exercising its planning functions may also give rise to a breach of the LG Act.  Under s 674 of the LG Act any person may bring proceedings in the Land & Environment Court for an order to remedy or restrain a breach of the LG Act.

Implications

Councils will need to ensure that when assessing a DA any request to withdraw the DA is consistent with the principles outlined in the Guidelines. If it is not, a Council could be exposed to the risk of litigation for a breach of the LG Act or alternatively, enforcement action by the Minister under the EPA Act.  To achieve compliance with the Guidelines, the only viable option for Councils where a DA is fundamentally flawed and lacks the requisite information for assessment, may be to determine the DA by refusal rather than request that it be withdrawn.