A Class 1 appeal (also known as a ‘merits appeal’) is relevant if your local Council has either made a decision on your development application that you would like to challenge or Council is deemed to have refused your development application by virtue of a length of time (ordinarily 42 days) following lodgment of your development application. It would then be considered a class 1 appeal under section 8.12 of the Environmental Planning and Assessment Act 1979.
Class 1 appeals are often related to matters where the council has refused a development or can also be in response to a determination under a section 8.2 review.
Class 1 appeals enable an applicant to remove the Council politics of the decision making process. It can also speed up the decision making process by utilising the deemed refusal provisions in relation to your development application. It allows the Court to make decisions and orders in relation to development applications that would have previously been in the hands of the decision maker (Council).
Commissioners usually hear Class 1 appeals however if there is a lengthy, complex or controversial matter, this might be heard by a judge as well as a Commissioner.
In most cases, you have 6 months from either the actual decision made by the Council or 6 months after the 42 day deemed refusal period has expired.
As Class 1 appeals are a ‘no costs’ jurisdiction, each party is responsible for their own costs regardless of whether you are successful with your appeal or not.
However, if you make an amendment to your development application that is more than minor, you will have to pay the Council’s costs thrown away as a consequence of the amendment.
