On 3 June 2021, the NSW Court of Appeal handed down its decision in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces  NSWCA 112.
Whilst the crux of the case related to the determination of an application to join (intervene) the proceedings, , the decision of Preston CJ has cast significant doubt on an issue that may have profound practical ramifications for developers. His Honour determined that there was no express or implied authority in the Environmental Planning and Assessment Act 1979 (NSW) (“EPA Act”) to amend a modification application.
The position taken by Preston CJ, albeit obiter, deviates from earlier decisions by the NSW Land Environment Court (“NSW LEC”) in Jaimee Pty Ltd v Council of the City of Sydney  NSWLEC 245 (“Jaimee”) and Mirvac Projects Pty Ltd v Ku-ring-gai Council  NSWLEC 540 (“Mirvac”), whereby the NSW LEC respectively held that there was an implied power to amend a modification application that was before the Court under appeal.
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an application to modify a development consent for an underground coal mine in the upper Hunter Valley under the now repealed s75W of the EPA Act. The Independent Planning Commission (“IPC”), as delegate of the Minister for Planning and Public Spaces (Minister), approved in part, the modification application. Dartbrook appealed to the NSW LEC against the IPC’s decision to not grant consent to the modification consent as proposed.
Dartbrook and the Minister participated in a conciliation conference under s34 of the Land and Environment Court Act 1979 (NSW) and an agreement was subsequently reached between the parties. The agreement made by the parties was on the proviso that Dartbrook make “minor amendments” to the proposed modification application.
Following the publication of the s34 agreement between the parties, the Hunter Thoroughbred Breeders Association Inc (“HTBA”) applied to the NSW LEC to be joined as a party to the proceedings. Duggan J ordered that HTBA be joined as a party to the proceedings under s8.15(2) of the EPA Act following the hearing for joinder. The basis for the order was to allow HTBA to raise a contention that the agreement between the parties was not a decision that the Court could have made in the proper exercise of its functions.
Dartbrook appealed the decision to allow HTBA to be joined as a party to the proceedings. The primary issue with the appeal related to the issue of joinder applications, with Meagher and Leeming JJA stating that it was inappropriate to then address the question of whether there was a power to amend a modification application. This was because, firstly, it was common ground in the parties’ submissions that a power existed, and secondly, the NSW LEC previously acknowledged in Jaimee that such power existed.
Notwithstanding the above, Preston CJ considered the issue in depth and stated (at ):
“I find that, contrary to the assumption of the parties, there is no power to amend a request or an application to modify a development consent or an approval, so that no question arises as to the scope of the power to allow the amendment of the request to modify the development consent sought by Dartbrook and the Minister.”
To substantiate this position, his Honour provided four reasons:
Firstly, there is no express or implied authority in the EPA Act allowing a proponent to amend a modification application.
Clause 55 of the Environmental Planning and Assessment Regulation 2000 (NSW) (“EPA Regulation”) allows amendments to development application and sections 4.55 and 4.56 of the EPA Act similarly permit amendments to a development consent. However, there is no analogous power to amend a modification application in the legislation, which specifically refers to development applications.
His Honour supports this proposition, stating (at ):
“The nature and extent of the entitlement to apply to modify a development consent or an approval and the constraints on the exercise of the power to modify a development consent or an approval are delineated by the terms in which the statutory provisions create the entitlement and the power…The statutory provisions were originally s 109, then ss 96 and 96AA of the EPA Act for modification of a development consent granted under Part 4 of the EPA Act and s 75W of the EPA Act for modification of an approval granted under Part 3A and certain development consents granted under Part 4, and are currently ss 4.55 and 4.56 of the EPA Act for development consents granted under Part 4 of the EPA Act.”
“The decisions of Jaimee Pty Ltd v Council of the City of Sydney and Mirvac Projects Pty Ltd v Ku-ring-gai Council, to the extent that they hold that an applicant is allowed to amend an application to amend an application to modify a development consent, are wrongly decided.”
Secondly, there is no express or implied power in the EPA Act for a consent authority to allow a proponent to amend its modification application prior to determining the application.
Thirdly, 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.
Fourthly, the Court has no power under s64 of the Civil Procedure Act 2005 (NSW) or Part 19 of the Uniform Civil Procedure Rules 2005 (NSW) to amend, or to allow the amendment of a modification application or request for modification of a development consent or approval.
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.