s4.55(3) of the Environmental Planning and Assessment Act 1979 (EPA Act) provides relevantly that:
In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in s4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (emphasis added).
The recent Court of Appeal decision of Feldkirchen Pty Ltd v Development Implementation Pty Ltd  NSWCA 227 provides guidance as to what sorts of documents can constitute reasons for the purposes of this section. This guidance is helpful, as the reasons for the original grant of the consent can be significant in the determination of the s4.55 modification application. For example, if reasons for the grant of consent included significant amendments/concessions made by an applicant to remove various elements to make the development acceptable and capable of approval. These reasons could then be significant in determining a s4.55 modification application to reinstate the original elements that were removed.
In the Feldkirchen case, three documents were sought to be relied upon as constituting the Council’s reasons for the grant of consent: the assessment report considered by the Council in granting the consent, the minutes of the meeting at which the Council granted consent and the notice of determination. However, none of these documents were found by the Court of Appeal to constitute reasons for the purposes of s4.55(3) of the EPA Act. It was therefore found that no reasons were given for the original grant of consent.
With respect to the assessment report, the Court of Appeal found that this report of itself could not record the reasons for the grant of consent.
Of relevance is the Court of Appeal’s observation that in determining to grant consent, the Council could have stated that its reasons for the grant of consent were the reasons given in the assessment report.
Similarly, the meeting minutes of themselves did not provide any reasons. The Court of Appeal again noted that the minutes of themselves did not adopt the assessment report or any reasons given in the report.
With respect to the notice of determination, the Court of Appeal noted that the Notice of Determination itself did not provide any reasons for the grant of consent. Whilst the notice did provide reasons for the imposition of conditions, these were not reasons for the grant of consent for the purposes of s4.55(3) of the EPA Act.
Some key relevant implications include the following:
- For Councils/planning panels/consent authorities: the case provides guidance as to what does and does not count as reasons for the grant of consent for the purposes of s4.55(3) of the EPA Act. It is suggested that consideration be given to ensuring that reasons for the grant of consent be provided in a manner which can legally be considered at a later point in time were a s4.55 application to be lodged. These reasons could be significant in the consideration of a subsequent modification application.
- For applicants/developers: in the event you are seeking to modify an existing consent, careful attention will need to be paid to whether any reasons have been given for the consent in a form that is legally required to be considered in a s4.55 application. This could be significant in terms of assessing the modification’s prospects of success eg if the proposed modification is directly contrary to the original reasons for the grant of consent.
This article was written by Philip Brown, Partner.