In AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 in a minority judgment in the Court of Appeal Preston CJ found that there is no power, either express or implied, to amend a modification application.

This means that once a modification application is lodged, it cannot be amended even with the agreement of the consent authority because there is nothing express in either the Environmental Planning and Assessment Act 1979 (EP&A Act) or the Environmental Planning and Assessment Regulation 2000 (Regulation) which allows an amendment.

This is despite earlier Land and Environment Court decisions which found there was implied power.

Update (July 8, 2021)

Since publishing this Insight a new decision on the power to amend a modification application was delivered by Justice Robson in Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69 (Duke Developments). In that case, Justice Robson agreed with the findings of Justice Preston in Dartbrook that there is no power to amend a development application. As such, those findings are now binding on courts and consent authorities. However, Justice Robson found that applicants could achieve the same outcome as an amendment to a modification application by the imposition of a condition (or conditions) on the approval of the application. A link to our summary of the Duke Developments case will be provided shortly.

Background

AQC Dartbrook Management Pty Ltd appealed to the Land and Environment Court against the decision of the Independent Planning Commission to refuse an application to modify a development consent for an underground coal mine in the upper Hunter Valley.

In the proceedings, Dartbrook and the Minister for Planning participated in a conciliation conference. As a result of that process, the parties reached agreement that the modification application could be approved provided certain amendments were made.

The Hunter Thoroughbred Breeders Association Inc (HTBA) applied to be joined as a party to the proceedings. HTBA was concerned that the Court did not have power to make the agreement reached between Dartbrook and the Minister because the amendments proposed to the modification application were so different from the original application, it would constitute a fresh application.

The primary judge ordered that HTBA be joined.

Court of Appeal Decision

Dartbrook appealed to the NSW Court of Appeal against the Land and Environment Court’s decision to join HTBA as a party.

In the Court of Appeal decision, the Chief Judge of the Land and Environment Court (sitting as one of the Judges in the Court of Appeal) found that there is no power, either express or implied, in the EP&A Act or Regulation to amend a modification application: see [227]-[267].

Clause 55 of the Regulation allows amendments to development applications, but it does not refer to modification applications. Similarly, while sections 4.55 and 4.56 of the EP&A Act enable modifications to development consents, there is no express power in those sections which enable amendments to modification applications.

In the earlier decisions of Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245 and Mirvac Projects Pty Ltd v Ku-ring-gai Council [2007] NSWLEC 540, the Land and Environment Court found that there was implied power to amend modification applications.

However, in AQC the Chief Judge determined that those cases were wrongly decided and there is no power, either express or implied, to amend a modification application.

His Honour also found that the power to amend documents found under section 64 of the Civil Procedure Act 2005 and Part 19 of the Uniform Civil Procedure Rules does not enable the Land and Environment Court to allow amendments to a modification application.

It appears to us that Preston CJ’s decision is a minority decision, the other Judges (Meagher and Leeming JJA) in AQC decided there was “no good reason” to determine whether or not there is power to amend a modification application because the argument was not run before the primary Judge in the Land and Environment Court. Nevertheless, we understand that presently the Land and Environment Court is following Preston CJ’s decision and is refusing to allow amendments to modification applications.

What about conditions?

While there is, presently, no power to amend a modification application, a consent authority does have power to impose conditions in determining a modification application (1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685). This was confirmed by the Chief Judge in AQC at [276] of AQC.

What does this mean for applicants?

The findings by Preston CJ in AQC are problematic for the development industry. It is common practice for amendments to a modification application to be made, in the same way that amendments are made to development applications, in the course of the assessment process.

The result of the Chief Judge’s decision in AQC is that a modification application cannot be amended as part of the assessment process.

In the case of a modification application that is the subject of a Court appeal, it may prevent parties from reaching agreement on an acceptable modification of an existing consent, because the Court does not have power to approve any amendments to the original modification application.

Legislative amendment

We are aware that submissions have been made to the Department of Planning for urgent legislative reform to provide an express power for amendments to modification applications.

However, as at the date of writing, we are not aware of any amendments proposed by the Department.