The law on whether a modification application can be amended following its lodgement has this week further evolved.
Clay AC of the Land and Environment Court has distinguished recent comments (in obiter) of Preston CJ in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces  NSWCA 112 (Dartbrook), that there is no statutory power for a modification application under s 4.55 of the Environmental Planning and Assessment Act 1979 (EP&A Act) to be amended after it has been lodged, either by the consent authority or the Court. Preston CJ observed that while a development application may be amended by operation of cl 55 of the Environmental Planning and Assessment Regulation 2000 (Regulation), there is no equivalent amendment power applying to modification applications.
Following on from that decision, Robson J in Duke Developments Australia 4 Pty Limited v Sutherland Shire Council  NSWLEC 69 (Duke), in a decision handed down on 2 July 2021, confirmed Preston CJ’s statement in Dartbrook that there is no power residing with the Court to amend a modification application.
These decisions have significant implications for many applications currently before the Court and we are aware that local councils have been quick to adopt this position in their assessment of existing modification applications, forcing developers to relodge their applications to effect any amendments.
However, on 6 July 2021 Clay AC in Cavcorp Australia Pty Ltd v Hunters Hill Council  NSWLEC 1392 (Cavcorp) held that the Court has power to amend an application to modify a consent granted by the Court that has been made directly to it under s 4.55(8) of the EP&A Act. Such an application was found to be “any document in the proceedings” under section 64 of the Civil Procedure Act 2005 (CP Act), overcoming the hurdle identified by Preston CJ in Dartbrook.
Section 64 of the CP Act gives power to the Court, at any stage of proceedings, to order that any document in the proceedings be amended, or that leave be granted to a party to amend any document in the proceedings. Preston CJ in Dartbrook found that “any document in the proceedings” refers to documents created for the purpose of the proceedings (i.e. the originating process, pleadings, notices of motion, subpoenas, notices to produce, affidavits and other statements of evidence filed in the proceedings), not a document “brought into existence before the proceedings are commenced and for a purpose other than the purpose of the proceedings”(i.e. the modification application lodged with a consent authority). As such, His Honour concluded that s 64 of the CP Act did not give power to the Court to amend the modification application lodged with a consent authority.
Both Dartbrook and Duke related to appeals against actual or deemed refusals of modification applications lodged with a consent authority. Cavcorp, however, related to an application made to the Court pursuant to s 4.55(8) of the EP&A Act to modify a consent previously granted by the Court. It was not an appeal against a decision of the relevant consent authority, but rather, “an application invoking the jurisdiction of the Court to modify consents granted by the Court.”
In Cavcorp, as the applicant “did not seek to amend a document brought into existence prior to the commencement of the proceedings”, but rather “sought to amend the very document which constitutes the application to modify the development consent and which is the initiating process in this Court, the Class 1 Application”, Clay AC found that the document which the applicant sought to amend was a document to which s 64 of the CP Act applies, i.e. a “document in the proceedings”.
Clay AC found that this difference in circumstances in which the modification application was brought to the Court meant that s 64 of the CP Act gave the Court power to amend the modification application.
Amending DA as an alternative to a modification application
For applicants seeking to modify a consent granted by a Council or Panel, the alterative option available is to lodge an ‘amending’ development application. Preston CJ discussed this option in Dartbrook at – as follows:
“[T]he grant of another development consent may have the consequence of effecting a modification of the original development consent in two ways. First, the second development consent may be granted subject to a condition requiring the modification or surrender of the original development consent (under originally s 91(7) and later s 80(1)(b) and (5) and currently s 4.17(5) of the EPA Act). Second, even without a condition requiring modification, the terms in which the second development consent is granted and the carrying out of development in accordance with the second development consent may have the consequence of effecting a variation of the original consent: Gordon & Valich Pty Ltd v City of Sydney Council at ; Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 432-433.
There is nothing to prevent a person having two development consents to carry out development on the same land… The two development consents applying to development on the same land need to be read together to ascertain the development that is authorised to be carried out on the land: Pilkington v Secretary of State for the Environment (1973) 26 P&CR 508 at 512-513;  1 All ER 283 at 287.”
This option is often used where proposed modifications do not meet the “substantially the same development” test in s 4.55 of the EP&A Act. We have recently acted for an applicant in obtaining development consent to add an additional 8 storeys to an existing tower through an amending DA.
- Per Cavcorp, modification applications made to the Court under s 4.55(8) of the Act may be amended prior to determination.
- Dartbrook and Duke continue to apply in relation to appeals against refusals of modification applications lodged with a consent authority, so as to prevent modifications applications that are lodged with a Council from being amended prior to determination.
- ‘Amending’ development applications can be used as an alternative to modification applications until such time as the legislation is amended to include an equivalent power to cl 55 of the Regulation for modification applications.
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