Posted on July 7, 2021 by Katie Mortimer and Megan Hawley
UPDATED: A Further Development – Power to amend a Modification Application made directly to the LEC
In an earlier post, we blogged about changes in the law that now mean there is no power in either a consent authority, or the Land & Environment Court on appeal, to amend a modification application made directly to the consent authority (see here).
Since then, on 6 July 2021, Acting Commissioner Clay of the Land & Environment Court has determined that a modification application lodged directly with the Land & Environment Court pursuant to s4.55(8) of the Environmental Planning and Assessment Act 1979, can be amended.
Update: on 14 July 2021 the Environmental Planning and Assessment Amendment (Modifications) Regulation 2021 took effect and now enables all modification applications to be amended.
Modification pursuant to section 4.55(8)
Section 4.55(8) of the EPA Act provides that an applicant who holds a development consent granted by the Court, may apply directly to the Court to seek the modification of that consent.
Such proceedings are not an appeal from a decision of a consent authority made on a modification application, but rather a direct application to the Court.
An applicant who wishes to amend a development consent granted by the Court is not required to use this method, and may instead lodge a s4.55 application in the ordinary way with the relevant consent authority.
Power to Amend
Clay AC noted that when lodging a modification application under s4.55(8) directly with the Court, the documents lodged with the Court comprise the actual application for modification. There is no earlier application made to a consent authority which has been determined, and no appeal from any determination.
Because of this, section 64 of the Civil Procedure Act 2005 (CP Act) applies. Section 64 provides that:
(1) At any stage of proceedings, the court may order—
(a) that any document in the proceedings be amended, or
(b) that leave be granted to a party to amend any document in the proceedings.
Clay AC held that the modification application made to the Court under s4.55(8) is clearly a document in the proceedings. Such a modification application can therefore be amended at any stage.
Consistency with Preston CJ and Robson J’s Findings
This case is to be distinguished from the decisions of Preston CJ in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces  NSWCA 112, and Robson J in Duke Developments Australia 4 Pty Limited v Sutherland Shire Council  NSWLEC 69 discussed in our earlier post.
In those cases it was held that there was no power in the Environmental Planning & Assessment Act 1979 or the Environmental Planning & Assessment Regulation to modify a modification application. That remains the case.
In both of those cases, however, the modification application had been made to the consent authority, and came before the Court as an appeal against the consent authority’s determination. Preston CJ and Robson J acknowledged that a class 1 application in such cases is a document in proceedings which could be amended under s64 of the CP Act. However, where the modification application was lodged with the consent authority, the Class 1 application is not the modification application. The modification application was the document which was lodged with the consent authority, and determined by the consent authority. The modification application itself was therefore not a document in the proceedings. For that reason, the power of the Court to amend a document in the proceedings in s64 of the CP Act, did not permit the amendment to the modification application.
It remains the case that if a modification application has been made to a council or other consent authority, there is no power in the consent authority or the Court to allow an amendment to that application.
However, this decision provides a way forward for any applicant holding a development consent which was granted by the Court.
There are now significant benefits to applicants in using s4.55(8) of the EPA Act and applying directly to the Court to modify such development consents. This approach will avoid the inconvenience and added time and costs of needing to withdraw a modification application and lodge it again with the relevant consent authority, any time an amendment is proposed.
In the absence of any further change in the law, we would not be surprised if this decision increases the use of s4.55(8) of the EPA Act.
You can read the judgment here: Cavcorp Australia Pty Ltd v Hunters Hill Council  NSWLEC 1392
If you would like to discuss the impact of the decision, or any other matter relating to the assessment of modification applications, leave a comment, or call Katie Mortimer on 02 8235 9716 or Megan Hawley on 02 8235 9703.