In June of this year, Chief Justice Preston of the Land and Environment Court sent the planning world into a tailspin after confirming that there was no power to amend a request or an application to modify a development consent or an approval. The State government has acted quickly to rectify this by introducing an amendment to the Environmental Planning and Assessment Regulation 2000 to provide for the amendment of a modification application.
Recent Case Law
On 3 June 2021, the Court of Appeal handed down its decision in the matter of AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112. Although not directly related to the subject matter of the appeal, Chief Justice Preston of the Land and Environment Court took the opportunity in his minority judgment to confirm that there is no power to amend a request or an application to modify a development consent or an approval.
In making orders, the Court of Appeal relevantly held:
- “(3) Contrary to the assumption of the parties, there is no power to amend a request or an application to modify a development consent or an approval. No question therefore arises as to the scope of the power to allow the amendment of the request to modify the development consent sought by Dartbrook and the Minister: [227];
- (4) There is no express or implied authority in the EPA Act allowing a proponent to amend its application to modify a development consent or an approval, or to allow a proponent to amend an application to modify a development consent or an approval prior to determining the application. The Court, on an appeal against the determination of a consent authority of an application or request to modify a development consent or an approval, therefore has no power to allow an applicant to amend the application to modify the development consent or approval. Nor does the Court have any power under s 64 of the Civil Procedure Act 2005 or Part 19 of the UCPR to amend, or to allow the amendment of, the application or request for modification of a development consent or an approval: [228], [252], [256], [260];”
Following on from the decision in AQC Dartbrooke Management Pty Ltd, Justice Robson of the Land and Environment Court considered a Notice of Motion filed by the Applicant in the proceedings seeking leave to amend a modification application in the matter of Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69.
Submissions made by the Applicant that the judgment of Preston CJ in AQC Dartbrooke Management Pty Ltd should not be followed in circumstances where they were commentary only and not binding were not accepted by Justice Robson.
Having considered the reasons given in AQC Dartbrooke Management Pty Ltd, as well as turning to earlier authorities, Robson J held at [106] that the order sought by the Applicant (to amend the modification application) infringed on the power of the Court to determine a modification application on appeal pursuant to section 8.9 of the Environmental Planning and Assessment Act 1979.
Amendments to the Environmental Planning Regulation 2000
Following the above decisions in the Court of Appeal and the Land and Environment Court, Minister for Planning, Rob Stokes, moved to amend the Environmental Planning and Assessment Regulation 2000 to allow amendments of a modification application.
On 14 July 2021, the Environmental Planning and Assessment Amendments (Modifications) Regulation 2021 came into force, relevantly inserting clause 121B into the Environmental Planning and Assessment Regulation 2000, to allow amendments of a modification application:
“121B Amendment of modification application—the Act, s 4.64(1)(q)
- (1) An application for modification of a development consent may, with the agreement of the consent authority, be amended by the applicant at any time before the application is determined by lodging an amendment on the NSW planning portal.
- (2) If the amendment results in a change to the development, the applicant must provide the consent authority with details of the nature of the change to the application.”
In addition to the above, the amending instrument introduces a number of further changes to better clarify the modification application process, described in the explanatory note as follows:
- “(a) provide that a consent authority may request additional information from an applicant for modification of a development consent, and
- (b) set out the days that are not included in calculating the period for deemed refusal of a modification application, and
- (c) provide for the amendment of a modification application, and
- (d) provide for the amendment of a request to modify the Minister’s approval for State significant infrastructure.”
Practically speaking, councils and even the Land and Environment Court have historically allowed modification applications to be amended, and as such the recent amendments made to insert clause 121B into the Environmental Planning and Regulation 2000 is a welcome change that will restore the status quo.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
