In brief
The case of AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 concerned an appeal to the New South Wales Court of Appeal against a decision of the New South Wales Land and Environment Court (Land and Environment Court) to allow the Hunter Thoroughbred Breeders Association to join proceedings relating to an application to modify a development consent for the Dartbrook underground coal mine (Appeal).
The issue of joinders has in recent years been considered in a number of decisions of the Land and Environment Court, but this article will focus on the following two points discussed in the Appeal in the judgment of Preston CJ, which will potentially have far-reaching impacts for other modification applications before consent authorities, including the Land and Environment Court:
1. Whether an applicant for a modification application can amend the modification application before it is determined.
2. Whether the grant of a development consent can have the effect of modifying another development consent.
These two points were not decided in the majority judgment of Meagher and Leeming JJA, therefore the judgement of Preston CJ, while relevant and persuasive, is strictly speaking not binding.
1. Can an applicant amend a modification application before it is determined?
Meagher and Leeming JJA found that it was inappropriate to address this question as it had been common ground between the parties, and in the Land and Environment Court below, that the power to amend the modification application did exist.
The Land and Environment Court received incomplete submissions on the point, which was also not fully argued before the Court of Appeal.
Nevertheless, Chief Justice Preston's views on the issue were clearly expressed in his judgment. At [227], his Honour states:
"I find that, contrary to the assumption of the parties, there is no power to amend a request or an application to modify a development consent or an approval, so that no question arises as to the scope of the power to allow the amendment of the request to modify the development consent sought by Dartbrook and the Minister." (emphasis added)
The four reasons provided for his Honour's position are summarised below.
First, there is no express or implied authority in the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) allowing an applicant to amend its modification application.
While clause 55 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) provides the ability to amend a development application prior to determination, there is no equivalent provision for modification applications. His Honour stated at [234]:
"The nature and extent of the entitlement to apply to modify a development consent or an approval and the constraints on the exercise of the power to modify a development consent or an approval are delineated by the terms in which the statutory provisions create the entitlement and the power…The statutory provisions … are currently ss 4.55 and 4.56 of the EPA Act for development consents granted under Part 4 of the EPA Act."
An applicant would therefore need to withdraw the modification application and make a new application requesting the different modification now sought.
Furthermore, Preston CJ stated at [239]:
"The power to modify a development consent or an approval must be exercised in relation to the particular modification sought in the particular application or request that has been made to the relevant decision maker. An exercise of the power will not be valid unless it constitutes a determination of that application or request…" (emphasis added).
Second, there is also no express or implied power in the EPA Act for a consent authority to allow a modification application to be amended prior to determining the application.
Third, the Land and Environment Court also has no power to allow an applicant to amend its modification application prior to determination as the Court metaphorically stands in the shoes of the consent authority when determining an appeal against a consent authority's determination of a modification application.
In that regard, the Court has "'all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal': s 39(2) of the [Land and Environment] Court Act." This "does not give the Court any function or discretion to allow an applicant to amend the application or request to modify the consent or approval." (at [256]).
Fourth, for completeness, Preston CJ also considered other potential sources of power to amend a modification application prior to determination. While section 64 of the Civil Procedure Act 2005 (NSW) and Part 19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) apply to Class 1 appeals in the Land and Environment Court, "these provisions do not authorise amendment of documents that are not documents of the kind to which the provisions apply." (at [260]).
Section 64 of the Civil Procedure Act 2005 (NSW) relates to amending documents "in the proceedings" (eg, originating process, pleadings, subpoenas etc). Preston CJ distinguished an amending document from a modification application, which is a document "brought into existence before the proceedings are commenced..." (at [261]).
Part 19 of the UCPR also does not allow a modification application to be amended. Rather, it authorises specific types of amendments such as an amendment to a statement of claim or adding or removing parties.
Implications for granting leave to amend modification applications
Although Preston CJ's comments were obiter, they raise important questions as to the power of Commissioners to grant leave to amend modification applications.
While Preston CJ disagreed with Craig J's previous statutory interpretation of this point in Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245, the outcome anticipated by Craig J will nevertheless be the result, unless there is legislative change to address the points raised by Preston CJ. In that regard, in Jaimee Pty Ltd v Council of the City of Sydney, Craig J stated the following at [28]:
“[E]xtraordinary administrative rigidity would be imposed if, upon examination of an application for modification, some apparent error or omission was discovered that was easily rectifiable but, nonetheless could not be rectified by amendment, necessitating the lodgement of an entirely new application.”
It would also significantly constrain the ability to reach agreement at section 34 conciliation conferences, if the proceedings involve a modification application and there was no scope for an applicant to offer to amend its application. As stated by Meagher and Leeming JJA at [27]: "The legislative purpose of s 34 is, where possible, to avoid the need for litigation."
2. Development consent can modify a separate development consent
In explaining that the entitlement of an applicant to amend its modification application prior to determination did not exist, Preston CJ also commented on the possibility that a development can modify a previously granted consent. In that regard, Preston CJ stated the following at [232]–[233]:
"[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 [17]; 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; [1974] 1 All ER 283 at 287." (emphasis added).
Relevant parties will need to go through the exercise of reading the "mosaic" of development consents together, which will inevitably cause difficulties in ascertaining how a development is to be carried out and also potentially the conditions that regulate the development, where multiple development consents apply to a single piece of land or there are apparent contradictions between the development consents applying to a single piece of land.
Conclusion
Preston CJ's judgment shines a light on a gap in the legislation for what is widely known to be a facultative power – ie, the power to modify a consent.
As mentioned above, we anticipate that Preston CJ's judgment will have significant impacts on the ability of parties to reach an agreement at section 34 conciliation conferences where the appeal relates to modification applications.
Chief Justice Preston's judgment also has the potential to affect modification applications recently approved, if these have included amendments to the application before determination. That would include modifications applications determined by any consent authority, including the Land and Environment Court.
However, we also note that there is a limited window of three months to question the validity of a development consent in any legal proceedings (section 4.59 EPA Act).
Given the above, one would expect to see legislative changes introduced addressing this, possibly introducing an equivalent to clause 55 of the EPA Regulation dealing with modifications.