The NSW Government has amended the Environment Planning and Assessment Regulation 2000 (NSW) (“EPA Regulation“) to expressly allow for the amendment of a modification application prior to determination by a consent authority.
The amendment also permits the consent authority to request and receive additional information from an applicant for a modification application. These provisions will apply to all modification applications irrespective of the consent authority and apply to applications to modify approvals for State significant infrastructure.
These changes come after the recent judgment of Chief Judge Preston in the Court of Appeal and a decision of Land and Environment Court which concluded that there was no power, express or implied, to amend a modification application once lodged.
In AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces  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 nevertheless convincing.
The planning practice was therefore waiting a definitive decision from the Land and Environment Court as to whether or not Preston CJ’s position would be followed.
Robson J has now handed down judgment in Duke Developments Australia 4 Pty Limited v Sutherland Shire Council  NSWLEC 69 confirming Preston CJ’s position. 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 in the Sutherland Shire Council Local Government Area.
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, essentially starting the assessment process from scratch with the local authority.
The Applicant, in an attempt to avoid Preston CJ’s reasoning and conclusions in Dartbrook, submitted alternative approaches for the Court to consider, without actual leave being granted to rely on the amended plans. These alternative approaches and Robson J’s response to them in summary are below:
- The Applicant submitted that a Modification Application can be amended through the imposition of appropriate conditions of consent which would permit the amendment of the details of the development to list the new (amended) plans in the 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;
- The Applicant submitted an alternative source for amendment pursuant to s23 of the Local Government Act 1993 (NSW) when the Council is the consent authority which is then transferred to the Court by virtue of s39(2) of the Land and Environment Court Act 1979 (NSW) (“LEC Act“).
Robson J rejected this argument;
- The Applicant submitted that an interim judgment can be delivered to bring amended plans into appeal proceedings, and allowing for conditions to be prepared to amend the details of the development by reason of the amended plans.
Robson J decided that there is no mechanism for parties seeking to rely on amended plans as a result of an interim judgment;
- The Applicant submitted that parties could reach an agreement under s34 of the LEC Act to dispose of proceedings by reference to the amended plans.
Robson J rejected this approach as the proceedings related to a modification application; and
- The Applicant submitted that the Court has power to amend a modification application by virtue of s64 of the Civil Procedure Act 2005 (NSW).
Robson J rejected this submission.
It is possible that following the recent decision, Parliament or the Department will intervene and amend the EPA Act and/or EPA Regulation to address the problem now facing developers in their inability to rely on amended plans once a modification application is filed with the Land & Environment Court in the Class 1 Jurisdiction.
Following the above decisions in the NSW Court of Appeal and the NSW LEC, Minister for Planning, Rob Stokes, moved to amend EPA Reg to allow amendments of a modification application.
Amendments to the Environmental Planning Regulation 2000
On 14 July 2021, the Environmental Planning and Assessment Amendments (Modifications) Regulation 2021 (NSW) came into force, relevantly inserting clause 121B into the Environmental Planning and Assessment Regulation 2000 (NSW), to allow amendments of a modification application. The relevant section reads as follows:
121B Amendment of modification application—the Act, s 4.64(1)(q)
(1) An application for modification of a development consent may, with the agreement of the consent authority, be amended by the applicant at any time before the application is determined by lodging an amendment on the NSW planning portal.
(2) If the amendment results in a change to the development, the applicant must provide the consent authority with details of the nature of the change to the application.
In addition to the above, the amending instrument introduces a number of further changes to better clarify the modification application process, described in the explanatory note as follows:
(a) provide that a consent authority may request additional information from an applicant for modification of a development consent, and
(b) set out the days that are not included in calculating the period for deemed refusal of a modification application, and
(c) provide for the amendment of a modification application, and
(d) provide for the amendment of a request to modify the Minister’s approval for State significant infrastructure.
Historically, Councils and even the NSW LEC have allowed modification applications to be amended, and as such the recent amendments made to insert clause 121B into the Environmental Planning and Regulation 2000 (NSW) is a welcome change that will restore the status quo.
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.