Following the decision of the NSW Court of Appeal (“CoA”) in the case of AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 (“AQC Dartbrook”), clause 121B was inserted into the Environmental Planning and Assessment Regulation 2000 (“EP&A Regulation) to provide an express power to amend a modification application.
Clause 121B provides as follows:
“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.”
While many had assumed that the introduction of clause 121B signalled a return to the “business as usual” practice of amending modification applications prior to their determination (including in the context of merits appeals before the Land and Environment Court (“LEC”)), the recent decision of Justice Pain of the LEC in the case of Scarf v Shoalhaven City Council [2021] NSWLEC 128 (“Scarf”) suggests otherwise.
Background
The Scarf case concerned two merits appeals in Class 1 of the LEC’s jurisdiction, one being an appeal against the Council’s refusal of a modification application pursuant to section 8.9 of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) and the other being an appeal against the Council’s deemed refusal of a building information certificate (“BIC”) pursuant to section 8.25 of the EP&A Act.
The modification application had relevantly been refused by the Council prior to the commencement of clause 121B of the EP&A Regulation on 14 July 2021.
The Applicant had filed a Notice of Motion in both of the proceedings seeking the LEC’s leave to amend the modification application and building information certificate application.
Both of the Notices of Motion raised the following unique procedural issues for the Court’s determination:
- In the case of the modification application, the Court was asked to determine whether the Court has power to amend a modification application lodged and determined by a consent authority before the commencement of clause 121B of the EP&A Regulation on 14 July 2021.
- In the case of the BIC application, the Court was asked to determine whether the Court has any power to amend a BIC application made under the EP&A Act.
Findings
Justice Pain found that the Court did not have the power to allow an amendment to either the modification application or the BIC application.
Modification application
Section 39(2) of the Land and Environment Court Act 1979 (“LEC Act”) relevantly provides as follows:
“(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.”
In short, her Honour found that because the modification application had been determined by the consent authority prior to the introduction of clause 121B of the EP&A Regulation on 14 July 2021 and no savings and transitional provisions had been made in connection with that clause, the consent authority did not “have” the function or discretion of accepting an amendment to the modification application and therefore no such power was conferred on the LEC under section 39(2) of the LEC Act on an appeal. In other words, clause 121B of the EP&A Regulation has no retrospective effect.
The Notice of Motion was dismissed on this basis.
BIC application
Relying upon the decision of the CoA in the AQC Dartbrook case, her Honour also found that there is no express power in the EP&A Act to enable the modification of a BIC application and no such power can be implied.
The Notice of Motion in the BIC proceedings was therefore also dismissed.
Implications of Scarf decision
It appears that the Court’s decision in relation to the amendment of modification applications only has significant implications for modification applications that had been lodged and determined prior to 14 July 2021 and are now the subject of LEC proceedings, rather than modification applications that are now the subject of “deemed refusal” appeals. The only way to facilitate an amendment to modifications applications determined prior to 14 July 2021 will be to discontinue the proceedings and lodge a fresh modification application, which will then benefit from clause 121B of the EP&A Regulation.
In the case of BIC applications, the decision makes it clear that there is no power to amend any BIC application once it has been made, including in the context of LEC proceedings.
The NSW Government could take steps to further amend the EP&A Regulation to rectify the lack of power identified in the Scarf case (as it did in response to the AQC Dartbrook case). We will watch any response to the case with interest and provide a further update in due course.
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.
