Are the powers and practices for amending a modification application in need of modification or amendment?

The Court of Appeal’s decision in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces

Introduction

On 3 June 2021 the NSW Court of Appeal handed down a judgment in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112.

The Court of Appeal bench included the Chief Judge of the Land and Environment Court Preston CJ (the other two judges were Meagher and Leeming JJA).

Whilst much of the case was concerned with joinder powers, Preston CJ in his judgment gave extensive consideration to the issue of whether there is power to amend an application to modify a development consent. His Honour’s view was that there is no power to amend an application to modify a development consent, which is the topic of this article.

Preston CJ’s decision raises potentially significant practical issues for developers and consent authorities alike in the future when dealing with the situation of an applicant seeking to amend an application to modify a development consent ie. the modification application has already been lodged but the applicant then wishes to make further changes to the proposed modification (even if the Council is supportive of the changes).

Background

AQC Dartbrook Management Pty Ltd (Dartbrook) had made an application to modify a development consent for an underground coal mine in the upper Hunter Valley under (the now repealed) s 75W of the Environmental Planning and Assessment Act 1979 (EPA Act). The modification application was approved in part and refused by the Independent Planning Commission (IPC).

On appeal in the Land and Environment Court, a conciliation conference under s 34 of the Land and Environment Court Act 1979 was held resulting in an agreement between the parties. The s 34 agreement involved some “minor amendments” to the modification application.

The Hunter Thoroughbred Breeders Association Inc (HTBA) was granted leave by Duggan J to join the proceedings and raise the contention that the s 34 agreement was not a decision that the Court could have made in the proper exercise of its functions.

Dartbrook appealed Duggan J’s decision to the Court of Appeal. It is in this context that Preston CJ gave detailed consideration to the issue of whether there is power of consent authorities, and the Court on appeal, to allow an applicant to amend its modification application.

Judgment

Key conclusions by Preston CJ on this issue were as follows:

1. “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”; 
2. “there is no express or implied power in the EPA Act for a consent authority to allow a proponent to amend an application to modify a development consent or an approval prior to determining the application”;
3. “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, has no power to allow an applicant to amend the application to modify the development consent or approval”; and
4. “the Court has no 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”¹.

In reaching the above conclusions (particularly points (a), (b) and (c) above) Preston CJ was of the view that previous Land and Environment Court decisions of Jaimee Pty Ltd v Council of the City of Sydney and Mirvac Projects Pty Ltd v Ku-ring-gai Council, to the effect that there was power to amend a modification application, were wrongly decided. Key to his Honour’s reasoning was the fact that there is no statutory provision allowing an applicant to amend a modification application. His Honour emphasised that this absence is in contrast to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) that expressly allows an applicant to amend or vary a development application at any time before the application is determined.

Preston CJ further highlighted that detailed regulations have been made in the EPA Regulation as to the form and content of an application for modification of a development consent. The fact that no provision is made allowing an applicant to amend or vary an application to modify a development consent should be seen to be a deliberate choice².

Conclusions

The other two Court of Appeal judges did not expressly address the issue that there is no power to amend a modification application, preferring to leave this it to be determined by the Land and Environment Court. Technically speaking, Preston CJ’s views in relation to this issue, whilst persuasive, would not be regarded as binding Court of Appeal authority.

It will therefore assist the industry when a definitive decision on the issue is given by the Land and Environment Court. Though having regard to the persuasive nature of Preston CJ’s decision it is anticipated that his Honour’s reasoning will be followed.

Indeed, whilst there have not yet been any judgments published by the Land and Environment Court definitively addressing this issue as far as we are aware at the time of writing, the trend of the Court to date from our experience is in line with Preston CJ’s reasoning. This includes extending the reasoning to other types of applications where there is no express power of amendment ie. Building Information Certificate applications.

At present there are a number of practical consequences which flow from the reasoning that there is no power to amend an application to modify a development consent, including as follows:

1. An applicant wishing to modify an existing development consent effectively must seek to ‘get it right first go’. Practically speaking, unless or until there is legislative change the prudent course for applicants wishing to modify their consents might be  to have a ‘pre modification’ meeting with the Council  to get an understanding of the Council’s views of the modification;
2. Many modification application appeals currently in the Land and Environment Court may need to be discontinued and fresh applications made to Council, for example if the applicant proposes to amend its modification application to address issues raised by the Council;
3. Withdrawing and starting again will no doubt be a costly exercise for developers, especially if court proceedings are already well advanced. This may lead to applicants persisting with their original modification applications at a contested hearing to ‘see how they go’ rather than start the process all over again by discontinuing the proceedings and lodging a different amended application with the Council;
4. The utility of s 34 conciliation conferences for modification application appeals may become questionable having regard to the particular circumstances, because even if the parties were to agree upon amendments to the application satisfying the Council’s contentions there would still be no power of the Court to grant leave to the amendments;
5. There is still power to impose conditions when determining a modification application, but practical and legal difficulties could arise in seeking to make changes by way of conditions in circumstances where it would be ‘neater’ and more logical to show agreed  changes on amended plans;
6. For existing modification application appeals before the Court, should an applicant seek to amend its modification application via notice of motion, any such motion is likely to be resisted by Councils;
7. Whilst complex and fact dependant, at present it may be more prudent for a developer wishing to modify an existing consent to seek to achieve this by way of a development application rather than a s 4.55 modification application (there is power under s 4.17 of the EPA Act to impose conditions on a consent to  modify a previous consent).

As noted above it will be interesting to see how the Land and Environment Court approaches the issue in the coming weeks/months. Moving forward it may be that Parliament and/or the Department may determine to amend the EPA Act and/or the EPA Regulation to address some of these practical difficulties to bring the matter back into line with what the industry had assumed was the case for many years.

This article was written by Kirston Gerathy, Partner, Philip Brown, Consultant and James Fyfe, Solicitor.

¹ This was a potential alternative source of power for the Court to allow amendments to modification applications but Preston CJ did not consider that it was available
² That is, “[t]he legislature has expressly allowed an applicant to amend an application for development consent but not an application or a request to modify a development consent“.