A judgment of the NSW Supreme Court of Appeal has raised significant doubts regarding the power to amend a modification application.
In AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces the Chief Judge of the Land and Environment Court made some significant comments regarding the power to amend a modification application.
Excerpts from the Court
In the judgment, the Chief Justice relevantly stated (with emphasis added):
Both HTBA’s argument and Dartbrook’s argument assume that there is power to amend a request for modification of a development consent or an approval, but join issue on what is the scope of the power of amendment. In order to resolve this dispute as to the scope of any power to amend a request or application to modify a development consent or an approval, it is first necessary to identify whether there is power and, if so, what are the terms of the power to amend a request or application to modify a development consent or an approval.
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. There are four reasons.
His reasons were as follows:
Reason One: First, 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. A development consent granted under Part 4 of the EPA Act and an approval granted under Part 3A of the EPA Act are the final determinations of the applications seeking the consent or approval. In a sense, the entitlement to make the application seeking development consent or approval merges with the determination of that application by the consent authority in granting or refusing the application. The power to determine the application does not include a power to reconsider or redetermine the application…
Reason Two: Secondly, 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… [this reasoning relates to the power pursuant to clause 55 of the EPA Regulation to amend development applications, and this same power not extending to modification applications]
Reason Three: 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. Such an appeal involves merits review; the Court metaphorically stands in the shoes of the consent authority and reexercises the power of the consent authority to determine the application or request to modify the development consent or approval. On the appeal, the Court has, for the purposes of hearing and disposing of the appeal, “all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal”: s 39(2) of the Court Act. This provision, however, does not give the Court any function or discretion to allow an applicant to amend the application or request to modify the consent or approval…
Reason Four: Fourthly, the Court has no power under s 64 of the Civil Procedure Act 2005 or Part 19 of the [Uniform Civil Proceudre Rules] to amend, or to allow the amendment of, the application or request for modification of a development consent or an approval. Both s 64 of the Civil Procedure Act and Part 19 of the [Uniform Civil Proceudre Rules] apply to civil proceedings in the Land and Environment Court, including an appeal in Class 1 of the Court’s jurisdiction. However, these provisions do not authorise amendment of documents that are not documents of the kind to which the provisions apply…
In relation to previous judgments that have permitted the amendment of modification applications, the Chief Justice relevantly stated:
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.
It is important to note that the two other judges on the bench did not express a view on this issue. They relevantly stated:
[The Chief Judge] Preston… has expressed the view that there was no power to amend Dartbrook’s modification application. Whether or not that is so is a pure question of law, and one which is capable of being determined for the first time in this Court. However, we are of the view that it is inappropriate to address that question. That is because it was common ground in the court below that there was power, in accordance with decisions such as Jaimee Pty Ltd v Council of the City of Sydney  NSWLEC 245. It was also common ground in the parties’ submissions in this Court; the debate instead was whether the alterations were so significant as to amount to a “new” modification application. True it is that in the course of argument, it was suggested that there was an anterior point, namely, whether there was power to accede to any amendment of a modification application. The fact that this was only raised during the hearing meant that this Court received incomplete submissions on the point. There is no good reason to resolve a point which the appellant would prefer not to be decided, in circumstances where that point was not advanced at first instance and where it was not as fully argued as it might be in this Court, and which (as is noted below) may not need to be decided at all.
What does this mean?
It is our understanding that the Department of Planning is urgently attending to a review of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulation) to deal with the issues raised by the Chief Justice in this judgment. Our expectation is that there may be urgent changes made to the EPA Regulation to deal with these matters.