In Ku-ring-gai Council v Buyozo Pty Ltd  NSWCA 177, the NSW Court of Appeal determined that there is no power to modify a development consent to amend a condition of consent requiring a monetary contribution.
Buyozo Pty Ltd (Buyozo) constructed and was using a building for storage premises and separate commercial premises. Condition 30 of the development consent required the payment of a monetary contribution (the Contributions Condition). The Contributions Condition was determined in accordance with the Ku-ring-gai Contributions Plan 2010 (Contributions Plan). The Contributions Plan provided an applicable rate for a building used for “business” per square metre of gross floor area.
Buyozo paid the full amount of the contribution to the Ku-ring-gai Council (Council). After Buyozo had completed construction of the building and commenced use of the building, Buyozo applied to the Council to modify the development consent by amending the Contributions Condition to reduce the amount of contribution. Following a deemed refusal of its modification application, Buyozo appealed to the Land and Environment Court.
Initially, the Land and Environment Court upheld the appeal and approved the modification of the development consent by amending the Contributions Condition to substitute $674,151.05 as the amount of contribution payable for the amount of $987,242.37 stated in the original condition.
Council appealed this judgment to the NSW Supreme Court of Appeal
Section 4.56 of the Environmental Planning and Assessment Act 1979 relevantly states:
4.56 Modification by consent authorities of consents granted by the Court
(1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if—
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) it has notified the application in accordance with—
(i) the regulations, if the regulations so require, and
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and
(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
Summary of NSW Supreme Court of Appeal
The Court came to the following conclusions in relation to the modification of the contributions condition:
- Modification under section 4.56(1) is only available where some change is proposed with respect to the development for which consent was granted. In this situation, the proposed modification had no environmental, or any other, effects. There was therefore no proposal to “modify the development”. The same building (which had already been completed) was to be used for the same purpose (which was its current use).
- There was no power to modify the development consent to amend the Contributions Condition in circumstances where the contribution had already been paid. A condition of consent imposed either on the grant of development consent or the modification of the development consent has the essential characteristic of requiring the doing or refraining from doing something in the future. A condition of consent can never be imposed so as to require the doing of something retrospectively but rather only to do something prospectively.
- A modification under s 4.56(1) of the EPA Act must effect some change to the development. Substituting a lesser amount for a greater amount of the monetary contribution could not effect any change to the development. In this circumstance, the preconditions to the exercise of the power in s 4.56(1) could have no application and s 4.56(1) was not an available source of power to modify the development consent
Excerpts from the NSW Supreme Court of Appeal
In the judgment, the following comments were made by the Court:
To say that the development proposed to be modified will be not merely substantially the same as, but identical with, the existing development, so that none of the factors identified in s 4.15(1) is engaged and the modification should therefore be granted, is to miss the point. The question of statutory construction is not answered by having regard to the circumstances of the particular case. The point is rather that s 4.56(1), read as a whole, demonstrates that a modification is only available where some change is proposed with respect to the development for which consent was granted. None was proposed in the present case, so that the power to modify was not engaged.
This essential characteristic of the grant of development consent means that a development consent cannot be granted to authorise development that has already been carried out, such as the erection of a building that has already been erected, the carrying out of a work that has already been carried out or the demolition of a building or work that has already been demolished. A development consent can never retrospectively approve the carrying out of development, but can only prospectively approve the carrying out of development. In the examples given, this would mean that development consent could be given for the use in the future of an already erected building or already carried out works or the use of the land on which a building or work was demolished.
Consider the example of a building that has been erected not in accordance with the development consent that authorises the erection of the building. Just as another development consent could not be granted to authorise the erection of the already erected building, so too the existing development consent cannot be modified to authorise retrospectively the erection of the already erected building. However, another development consent could be granted or the existing development consent could be modified to authorise the use of the already erected building in the future. The grant of another development consent or the modification of the existing development consent would not cure the breach of s 4.2(1) of the EPA Act of carrying out the development of the erection of the building not in accordance with the development consent, but either approval would authorise the development of the use of that building in the future.
What does this mean?
There will be many applications currently lodged with consent authorities which may be impacted by this judgment.
For modification applications which are currently lodged with a consent authorities, we strongly recommend that urgent legal advice is obtained to determine whether the consent authority has the power to determine the application.
For potential applications (such as those as the pre-DA stage), we strongly recommend that legal advice is obtained prior to lodgment. It may be appropriate to have a lawyer consider the proposed application and provide advice to the consent authority with respect to whether there is power to determine the application.