There are several stages in the Commission’s process of considering and determining a State significant development application.
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Case commencement
A State significant development (SSD) application will come to the Commission for determination after it has been publicly exhibited and assessed by the Department of Planning, Housing and Infrastructure (DPHI). Cases come to the Commission for determination if at least 50 unique objections to the application were received by DPHI, the local council has objected, or the applicant has made a reportable political donation.
DPHI provides the Commission with a whole-of-government assessment of the SSD application, which it has undertaken on the Commission’s behalf. DPHI’s Assessment Report is published on both agencies’ websites, along with any conditions of consent recommended by DPHI.
The Chair of the Commission will appoint a Panel of Commissioners to consider the SSD application and make a determination, and a new case page for the application will be created on the Commission’s website.
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Public submissions
The Commission will typically invite written submissions from interested individuals and groups on State significant development applications under consideration. The Commission has access to the written submissions previously made to DPHI by members of the public when the SSD was exhibited. The Commission is particularly assisted in its process by submissions that respond to the most recent information about the application. This can be found in DPHI’s whole-of-government assessment report.
Submissions are lodged online via the case page on the Commission’s website and published on the case page once they are processed. Submissions provided by email or post within the advertised timeframe will also be accepted. Any submissions deemed to be offensive, threatening, defamatory or otherwise inappropriate will not be published.
For more information on making a submission, please read our Public submission guidelines and our Privacy statement.
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Stakeholder consultation
The Commission may seek an assessment briefing from DPHI and convene other meetings with stakeholders including the applicant, local council or other government agencies to hear a range of views on the State significant development (SSD) application. In cases where a public meeting or hearing is not held, the Commission may also meet directly with relevant community groups or representatives.
Stakeholder meetings are recorded, transcribed and published on our website in accordance with our Transparency policy.
The Commission will sometimes request additional information in writing from DPHI or the applicant. This correspondence is also published on our website.
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Site inspections
The Commission may undertake a physical site inspection, virtual site inspection or locality tour in accordance with our Site inspection and locality tour guidelines. However, there is no statutory requirement for the Commission to do so.
The purpose of the site inspection or locality tour is to assist the Commission in understanding the physical attributes of the project site and its locality. We may also consider supplementary or alternative sources of information, including:
- video or photographic submissions from the applicant
- virtual inspection of the site on a video call from the applicant
- any notes or photographs from the site inspection conducted earlier by DPHI.
The Commission may publish photographs of key views inspected on site or a plan of the site showing where the photographs were taken.
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Public meetings or hearings
Public meetings
A public meeting is an opportunity for the Commission to hear the community’s views on an SSD application and DPHI’s assessment of that application. Anyone can register their interest to speak at a public meeting. The applicant will also be invited to speak on the application and any changes since it was exhibited by DPHI. The Commission may invite the applicant and DPHI to respond to Panel questions at the end of the public meeting.
There is no statutory requirement for the Commission to hold a public meeting before determining an application. The considerations that guide the Commission in deciding whether to hold a public meeting are set out in our Public meeting guidelines.
Public meeting guidelines More about our public meeting process
Public hearings
The Commission only holds a public hearing if a formal request to do so is received from the Minister for Planning and Public Spaces. The Commission has no involvement in determining which cases will be subject to a public hearing.
Anyone can register their interest to speak at a public hearing. At the hearing, the applicant and DPHI will also speak and answer questions from the Panel on the issues raised. The Commission may also engage counsel assisting to support the hearing process.
When the Commission holds a public hearing on a development application for which it is the consent authority, merit appeal rights in respect of any future decision on that application are extinguished for both the applicant and objectors. See Division 8.3 of the EP&A Act for more detail and ‘Appeals against the Commission’s decisions’ below for more information.
Public hearing guidelines More about our public hearing process
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Determination
In making its determination, the Commission considers all the information provided and whether the application complies with legislation and aligns with government policy. It also considers the benefits, impacts, risks and public interest of a project, at both the local, micro level and the statewide, macro level.
When the Commission determines a State significant development (SSD) application, it will issue the development consent or notice of refusal and publish this with a Statement of reasons for decision on its website. The Statement of Reasons will include:
- the Commission’s decision
- date of the decision
- reasons for the decision
- how community views were taken into account.
If you have made a submission to the Commission or to DPHI on an SSD application, you will be notified by email when the decision is published.
Other processes
Once the Commission determines a development application, it cannot revisit or remake that decision without a court order. Accordingly, the Commission cannot review or hear appeals against its own decisions - that is the role of the court system.
Principally, two types of appeals can be brought against the Commission’s determinations of development applications. These are informally described as ‘merit appeals’ and ‘judicial reviews’.
Merit appeals
A merit appeal involves the court sitting in the place of the original decision maker and re-exercising the administrative decision-making functions. The decision of the court is binding and becomes that of the original decision maker. In merit appeals against development applications, the court decides whether to approve a development application and, if so, the conditions of the consent.
The court may require the Commission and the other parties to participate in a conciliation process. In these cases, the Commission is merely another party to the proceedings and has the same rights or privileges as the other parties. The Commission must comply with the court’s processes – including any requirements to keep confidential what is said or produced in the conciliation. In such cases, the court is still the decision maker, even when a conciliated outcome is reached between the parties to the proceedings.
The Commission’s approach to this part of the Court's process is set out in the Commission's Section 34 conciliation conferences colicy.
Judicial reviews
A judicial review involves asking the court to review whether decisions or behaviours of government agencies or people have followed the law and, if not, requiring them to make a new decision or behave in accordance with the law. To learn more about judicial reviews, read the Class 4 – Judicial review and civil enforcement page on the Land and Environment Court of NSW website.
Generally, the Commission does not actively participate in judicial review proceedings against its decisions. This is to preserve the Commission’s impartiality if a court upholds a judicial review and the Commission is required to make a new decision. The Commission’s decision whether to play an active role will be made on a case-by-case basis, based on the specific circumstances of that judicial review.
Under state laws, there are limitations on the types of appeals that can be made, as well as limitations on when those appeals may be commenced, who may commence the appeal, and who can participate in the appeals process. One of those limitations is that a decision made by the Commission on a development application cannot be subject to a merit appeal if the Commission conducted a public hearing regarding that development application.
The Commission does not provide legal advice to any person seeking to appeal its decisions. Nothing on this website should be relied on as legal advice and any person, including any person considering an appeal of a Commission decision, is strongly encouraged to seek their own independent legal advice regarding their rights of appeal.
If an applicant seeks to amend a development application before the Commission for determination, the amendment request may be made directly to DPHI. The Commission has delegated its function of agreeing to amendments to development applications to DPHI, in accordance with the Instrument of delegation.