Posted on November 8, 2016 by Michael Levy

Ch-ch-ch-ch-changes – to what extent can you modify a modification application?

In a recent decision of the Land and Environment Court, Registrar Gray found that the Court did not have the power to grant leave to amend a modification application because the extent of the changes being made to the modification application rendered it a new application.

The decision serves as a timely reminder of the scope of the Court’s power when considering modifications under s96 of the Environmental Planning and Assessment Act 1979 (the EPA Act).

Background

  • The developer sought development consent for a 101 room, four storey boarding house (DA).
  • Throughout the assessment process the developer agreed to make amendments to the DA to reduce the number of rooms to 94 and to remove the fourth storey and replace it with a ‘west-wing’.
  • Council granted consent to a 3 storey boarding house with a deferred commencement condition requiring the deletion of the ‘west-wing’.
  • The developer subsequently submitted a modification application to Council under s96 of the EPA Act to amend the consent and remove, among other things, the deferred commencement condition i.e to reinstate the ‘west-wing’ (the Modification Application).
  • When the deemed refusal period had elapsed the developer commenced proceedings in the Land and Environment Court seeking approval for the Modification Application.
  • Throughout the course of the proceedings, the developer sought leave to amend the Modification Application seeking to add a fourth storey to the main building of the boarding house instead of reinstating the ‘west-wing’.

In what circumstances could and should the Court grant leave to amend the Modification Application?

Registrar Gray confirmed that the Court had the power to grant leave to an amendment to a modification application as the Court in a Class 1 appeal has all the functions and discretions of the consent authority, and in addition, the Court has previously held that a power to apply must include a power to amend.

Whether the power could be exercised in a particular case would require the Court to consider:

  • the nature and scope of the amendment sought; and
  • whether that amendment transforms that which was originally proposed (in the Modification Application) into a new application.

Was the application to amend the Modification Application a new application?

The developer submitted that leave should be granted to amend the Modification Application because if approved the proposal (as proposed in the amended Modification Application) would be consistent with the original DA.

By contrast, the Council submitted that the amendment would convert the Modification Application into a new application because the amended Modification Application would be entirely different to the Modifcation Application which was originally made.

Registrar Gray accepted the Council’s submissions.

She rejected the developer’s argument that the point of reference or context for determining whether the amendment of the application rendered it a new application was the development itself. She accepted the Council’s argument that the relevant context was the application.

On that basis, the Court refused leave to amend the Modification Application.

Lessons from this case

The jurisdiction of the Court in proceedings constituting an appeal against a determination of an application under s96 of the EPA Act will be limited by the scope of the application.

In this case, as the developer was dissatisfied with the terms of the development consent, the developer could have lodged an appeal under s97(1) of the EPA Act which would mean that the entire determination would be the subject of the appeal and any proposed modification to the development application could be considered in the context of the development application itself and the development as a whole.

Whilst developers often lodge s96 applications and appeals against those applications as a means to seek a change to a consent, without risking the entire consent on appeal, it must be recognised that the limitation on the Court’s powers also limits the amendments and changes which can be made through the appeal process.

The full text of the decision is available here.

Should you wish to discuss modification applications or other issues related to development appeals please contact Megan Hawley, Partner on 8235 9703 or megan.hawley@lindsaytaylorlawyers.com.au