Court confirms there is no power to amend a modification application once filed 

07 July 2021

Court of Appeal decision in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112

In AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112, Preston CJ sitting in the Court of Appeal handed down a judgment which concluded that there is no statutory provision allowing an applicant to amend a modification application.

As the other two Court of Appeal judges did not expressly address this issue, Preston CJ’s views would not be regarded as binding Court of Appeal authority although it would be persuasive.

The industry was therefore waiting a definitive decision from the Land and Environment Court as to whether or not Preston CJ’s position would be followed. See our previous article discussing this case.

Robson J has now handed down judgment in Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69 confirming Preston CJ’s position.

Land and Environment Court decision in Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69

This case considered a motion to amend plans the subject of an appeal against a deemed refusal of a modification application seeking to modify a development consent for a residential flat building.

Robson J dismissed the motion and followed the reasoning of Preston CJ in Dartbrook, concluding that there is no power to amend a modification application by granting leave to rely on amended plans. The conclusion was in summary that  if the applicant wishes to rely on amended plans, they need to withdraw their modification application and submit a new one, starting the process from scratch.

The Applicant, in seeking to avoid the reasoning and conclusions set by Preston CJ in Dartbrook attempted to come up with alternative approaches for leave to be granted to rely on amended plans without actual leave being granted to amend the modification application. These approaches and Robson J’s response to them were in summary as follows:

  1. The Applicant submitted that a Modification Application can be amended through the imposition of conditions which amend the details of the development to list the new plans in conditions rather than through amending the plans formally. Robson J did not make a decision in relation to this approach but determined that it would be a matter for the Court (as consent authority in the appeal) to determine in the appeal proceedings;
  2. The Applicant submitted an alternative source for amendment can be gained where Council is the consent authority, through s23 of the Local Government Act 1993 which is then passed to the court by virtue of s39(2) of the Court Act. Robson J rejected this argument;
  3. The Applicant submitted that an interim judgment can be sought to bring amended plans into appeal proceedings with an interim judgment allowing for conditions to be prepared to amend the detail of the development, referring to amended plans. Robson J concluded that there is no mechanism for parties seeking to rely on amended plans as a result of an interim judgment;
  4. The Applicant submitted that parties could reach an agreement under s34 of the Court Act to dispose of proceedings by reference to amended plans. Robson J rejected this approach to bringing amended plans into court proceedings relating to a modification application; and
  5. The Applicant submitted that the Court has power to amend an application by virtue of s64 of the Civil Procedure Act. Robson J rejected this approach.

The conditional approach put forward by the Applicant, of seeking to persuade the Court to approve a modification subject to conditions which include amended plans, may potentially be a ‘stop gap’ solution. However, whether it would be potentially be available would depend upon the particular facts and circumstances and would ultimately be a matter for the Commissioner hearing the appeal. Relying upon a potential to pursue this conditional approach at a hearing would be very risky from an applicant’s perspective.

As we previously speculated, it is possible that Parliament or the Department will step in and amend the EPA Act and/or EPA Regulation to seek to address the problem now facing developers in their inability to rely on amended plans once a modification application is filed.

This article was written by Philip Brown, Consultant, Danielle Le Breton, Partner and Alex Epstein, Associate. 

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