Posted on July 5, 2021 by James Fan and Megan Hawley

UPDATED: Can a modification application be amended?

Consent authorities assessing applications to modify development consents, usually under s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act), have generally assumed that they could accept an amended form of the modification application. However, a recent decision of the NSW Court of Appeal has cast significant doubt on the ability of a consent authority, and the Land & Environment Court on appeal, to accept amendments to an application to modify a development consent. 

Since this article was originally published in early June, the comments made in the Court of Appeal have been adopted and followed in the Land & Environment Court here.

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. 

Background

The case concerned an application by AQC Dartbrook Management (Applicant) to modify an approval for an underground coal mine in the Hunter Valley (Mod 7) under the former Part 3A of the EPA Act. After the Independent Planning Commission, as delegate of the Minister for Planning and Public Spaces (Minister), approved part of Mod 7, the Applicant appealed against the decision to the Land and Environment Court (LEC).

Following conciliation, the Applicant and the Minister reached agreement pursuant to s 34 of the Land and Environment Court Act 1979.  The agreement, aside from inviting the making of orders to approve Mod 7, invited the LEC to grant leave to the Applicant to rely upon an amended modification application. 

The LEC ordered that one objector be joined to the proceedings on the basis that that objector wished to raise an argument that the LEC had no jurisdiction to determine the amended modification application as it was so different from the original modification application that it constituted a new application (Jurisdiction Argument). 

The Applicant appealed against the order joining the objector to the proceedings.

Decision and Views of Preston CJ

The decision of the Court of Appeal, comprised of Meagher and Leeming JJA and Preston CJ of LEC (but sitting in the Court of Appeal), was that the primary judge in the LEC erred in joining the objector, and the Court ordered that the order joining the objector be set aside.

Preston CJ went on to examine the Jurisdiction Argument, and in doing so, not only considered whether the particular amendment of the modification application was so significant as to make it a new application, but also whether there was any power to amend a modification application at all. 

Firstly, his Honour noted that there is no express provision in the EPA Act or Environmental Planning and Assessment Regulation 2000 (Regulation) to allow a proponent to amend an application to modify a development consent. There is no equivalent to clause 55 of the Regulation which provides for the amendment of development applications . His Honour also noted that modification applications are made under very specific powers of the EPA Act, which did not exist in previous town planning legislation. Accordingly, in the absence of a specific power of a consent authority to accept amendments (such as clause 55 of the Regulation in respect of development applications), it was doubtful such a power could be implied.

Secondly, his Honour said there is no power of the Court, on an appeal against the determination of a modification application, to allow amendment of the application as the Court is exercising the powers and functions of the consent authority. 

His Honour also said that previous decisions of judges of the LEC to the effect that a modification application could be amended, were wrongly decided.

It was concluded by Preston CJ that the Jurisdiction Argument was reasonably arguable “not from the extent of the amendment of the application to modify the development consent being so great so as to convert it into a fresh modification application, but rather from there being no power in the first place to allow any amendment of the modification application.”

Application in LEC

On 2 July 2021, Robson J of the Land & Environment Court handed down a decision in respect of a notice of motion to amend a modification application before the Court. 

In short, Robson J considered the comments made by Preston CJ in the Court of Appeal,  and whilst noting that they were not binding on him, found that he needed to consider the comments, and alternative arguments put to him in respect of the power to amend a modification application, in order to determine the motion before him.

Robson J agreed with Preston CJ that there is no power to amend a modification application.

As a result, in the absence of an amendment to the Regulation (or an appeal and reconsideration by the Court of Appeal), the comments of Preston CJ and the decision of Robson J should be taken to reflect the legal position that will be applied by the Land & Environment Court, and consent authorities should adapt their procedures. If an amendment to a modification application is sought to be made, the original application will need to be withdrawn and a new application lodged. 

It remains possible to impose conditions when determining a modification application which can amend the original proposal to some extent. However, caution needs to be exercised in respect of the scope of what can lawfully be conditioned. 

If you would like to discuss the impact of the decisions, or any other matter relating to the assessment of modification applications, leave a comment, or call James Fan on 02 8235 9706 or Megan Hawley on 02 8235 9703.