We have previously reported on 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 and the subsequent introduction of clause 121B into the Environmental Planning and Assessment Act 1979, which our readers will recall provides an explicit power for a modification application to be amended prior to determination. A copy of that article can be accessed here.
The CoA has since handed down its decision in the case of Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 (“Buyozo”), which has important implications for modification applications seeking to modify a condition of a development consent requiring the payment of monetary contributions.
The Buyozo case concerned an appeal an under section 57 of the Land and Environment Court Act 1979 (“LEC Act”) against a decision of Justice Pepper of the Land and Environment Court (“LEC”) approving a modification application that sought to amend a condition of consent imposed under section 7.11(1) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) requiring the payment of a monetary contribution by reducing the amount of the contribution that was payable. It is relevant to note that the monetary contribution had already been paid to the Council prior to the modification application being lodged and determined by the LEC.
The Council appealed on the ground that the primary judged had erred in concluding that there was power to modify the contributions condition, among other grounds.
The Buyozo case was heard by Justices Basten and Payne (delivering a joint judgment) and Chief Justice Preston of the LEC (delivering a separate judgment).
The CoA made the following relevant findings concerning the power to modify a condition requiring the payment of monetary contributions under sections 4.55 and 4.56 of the EP&A Act:
- The power only arises where some change is proposed to the development for which the consent was granted, although this need not be the only effect of the modification application. As the modification application only proposed a modification to the contributions condition, there was no change to the approved development (per Basten and Payne JJA at paragraphs [10]-[11] and Preston CJ at [48]-[65]).
- The power only operates prospectively so as to authorise something to be done in the future, as opposed to retrospectively authorising something that has already been carried out. This means that a contributions condition can never be modified where the land or monetary contribution required by the condition has already been dedicated or paid (per Preston CJ at [37]-[47]).
Notwithstanding these conclusions, Preston CJ reiterated that applicants seeking a remedy to amend or delete a contributions condition could still pursue the following avenues (see paragraphs [67]-[70]):
- Where the matter sought to be remedied is a minor error, misdescription or calculation, an application under section 4.55(1) of the EP&A Act.
- Lodge an appeal against the determination of a development application subject to a conditions under section 7.11 of the EP&A Act, noting that the Court on appeal can review whether the condition is of a kind allowed by and is determined in accordance with a contributions plan (as required by section 7.13(1)) and can disallow such conditions if it finds them to be unreasonable in the circumstances of the case (as authorised by section 7.13(3)).
- Judicial review proceedings seeking that the condition be declared invalid and severed from the consent.
Shortly before the publication of the decision in the Buyozo case, Preston CJ handed down his decision in the case of Intrapac Skennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 83 (“Intrapac”).
The Intrapac case concerned an appeal against the Council’s deemed refusal of a modification application in essence seeking that the contributions payable pursuant to a condition imposed under section 7.11(1) of the EP&A Act be reduced. The modification application had been refused by an Acting Commissioner of the LEC, whose determination was then appealed under section 56A of the LEC Act and reviewed by Preston CJ.
Preston CJ relevantly found that the power of the Court on appeal in section 7.13(3) of the EP&A Act (which we have referred to above) is not available to be exercised by the Court in an appeal against the determination of a modification application under section 8.9 of the Act. His Honour’s reasons can be summarised as follows:
- Section 7.11 of the EP&A Act applies to conditions imposed upon the grant of development consents, meaning the timing for the dispensation afforded under section 7.13(3) of the Act is during an appeal against the determination of a development application (and not a modification application).
- The constraints upon the power to modify a development consent are only to be found within the provisions conferring that power (i.e. sections 4.55 and 4.56 of the EP&A Act) and not within any other provisions of the Act. Section 7.13(3) therefore cannot constrain the modification power.
The decisions in the Buyozo and Intrapac cases clearly have some potentially wide ranging consequences for the ability to modify a development consent to alter the amount of contributions payable pursuant to condition imposed under section 7.11 of the EP&A Act.
The full extent of these consequences has not yet been tested in subsequent cases, and so it remains to be seen whether a modification application could alter the amount of contributions payable if it also proposed changes to the approved development itself.
The cases undoubtedly form an interesting chapter in the continuing development of the law on the power to modify development consents as it has unfolded to date this year.
For further information on these planning and environmental law updates, please contact Adam Seton on aseton@marsdens.net.au or (02) 4626 5077.
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.
