There have been a number of unforseen consequences as a result of comments made in June of this year by Chief Justice Preston in the Court of Appeal matter of AQC Dartbrook Management,including changing the way development applications and modification applications the subject of appeals in the Land and Environment Court are amended.
The decision of Chief Justice Preston in the Court of Appeal matter of AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces[2021] NSWCA 112 considered the power to amend a modification application, and shone a spotlight on the language of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).
To read more about the decision of Chief Justice Preston in the Court of Appeal matter of AQC Dartbrook Management click here.
The power to amend or vary a development application before the application is determined is found in clause 55(1) of the EPA Regulation, and the power to amend or vary a modification application before the application is determined is found in clause 121B(1) of the EPA Regulation. Clauses 55(1) and 121B(1) of the EPA Regulation relevantly state (emphasis added in bold):
“55 What is the procedure for amending a development application?
- A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined, by lodging the amendment or variation on the NSW planning portal.
121B Amendments of modification application – the Act, s 4.64(1)(q)
- 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.”
Clauses 55 (1) and 121B (1) of the EPA Regulation make clear that in order to amend a development application or modification application, the amendment must be lodged on the NSW Planning Portal.
The Land and Environment Court has recently changed its practice in relation to amendments sought to be made by an Applicant to a development application or modification application to reflect the role that the NSW Planning Portal now plans in effecting the amendment.
Previously, an Applicant on appeal in the Land and Environment Court would be required to file a Notice of Motion to seek leave of the Court to amend a development application or modification application the subject of the appeal. The Court, standing in the shoes of the consent authority, would then grant or refuse leave to the Applicant to amend.
The Land and Environment Court has changed this practice to provide councils with the opportunity to consent to the Notice of Motion. Should the council oppose consent or take a neutral position on the Applicant’s Notice of Motion, then the Court will take an active role in determining the Motion.
Depending on the position taken by the council, the standard orders made by the Court will be:
“The Court orders that:
- The Court, exercising under section 39(2) of the Land and Environment Court Act 1979 the function of the Council as the relevant consent authority under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, agreed to the Applicant amending the development application in accordance with the amended plans and documents.
- The Respondent, as the relevant consent authority, is to lodge the amendment of the development application in the NSW Planning Portal within 7 days of the date of this order and notify the Applicant after it has been lodged.
- The Applicant is to file a copy of the amended application within 7 days after the Respondent has notified the Applicant that the amendment has been lodged on the NSW Planning Portal.
- In the event that the Respondent is unable to lodge the amended application on the NSW Planning Portal as directed at (2) above, the Respondent is to notify the Court via Online Court as soon as possible but no later than 14 days after the date of the order and request the matter to be relisted for further directions.”
In addition to granting the Applicant leave to amend the development application or notification application, the Court orders require the council to lodge the amendment in the NSW Planning Portal.
The new orders adopted by the Court have created difficulties for councils dealing with development applications and modification applications which were lodged before the NSW Planning Portal was introduced and do not have a PAN, and also for development applications and modification applications which have already been the subject of a determination resulting in the Portal being closed and preventing the lodgment of amended plans.
To assist councils, the Department of Planning, Industry and Environment (DPIE) have releases a publication titled “Publication for Exhibition: Quick Reference Guide” which outlines the steps to be following for councils to lodge the amendment of a development application or modification application on the NSW Planning Portal.
A copy of the DPIE publication can be found here.
In addition, the Court has suggested that if amended plans or documents are lodged by an Applicant on the NSW Planning Portal, and that amendment is accepted by the Respondent Council, then it may not be necessary for the Applicant to file a Notice of Motion in the Court proceedings. In those circumstances, the Court has suggested that an Applicant could file the amended plans or documents with the Court without needing leave of the Court to do so.
Although it remains to be seen whether the Court would require an Applicant to file a Notice of Motion after a council has accepted amended plans or documents lodged on the NSW Planning Portal, council’s should be keep a close eye on matters that are the subject of Court proceedings to ensure that amended plans or documents are not lodged unnoticed.
In particular, if amended plans or documents are accepted by a council through the NSW Planning Portal, council’s may not have the opportunity to claim costs “thrown away” pursuant to clause 8.15(3) of the Environmental Planning and Assessment Act 1979 which are required to be paid by an Applicant when the Court grants leave to amendments to a development application that are “more than minor”.
Once a development application or modification application has been appealed to the Land and Environment Court, It is important that councils inform their legal team as soon as amended material is lodged on the NSW Planning Portal by an Applicant, so that a decision can be made as to whether the amendment should be accepted or rejected.
If you are experiencing any difficulty with the NSW Planning Portal or have any questions about councils role or responsibilities in relation to the NSW Planning Portal, you can contact the Department of Planning, Industry and Environment on 1300 305 695 or by email to info@service.nsw.gov.au.
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.
