In brief - Following modification procedure will ensure proper jurisdiction is enlivened
The Land and Environment Court’s recent decision in the case of Fenwick v Woodside Properties Pty Ltd  NSWLEC 104
demonstrates the critical importance of the requirement to publicly notify applications for consent, in particular section 96(2)
modification applications (under the Environmental Planning and Assessment Act 1979
); and the Court's approach to time limits for allowing judicial review proceedings.
Jurisdictional error in earlier modifications renders later modifications invalid
In this case, a developer sought to make three successive section 96(2) modifications to a condition of development consent authorising a subdivision of land for residential purposes. The condition imposed a requirement for a restriction on the form and scale of dwellings to be constructed on the land. The Court found that the first two modifications sought had fallen into jurisdictional error because they were not publicly notified in accordance with clause 119(2)
of the Environmental Planning and Assessment Regulation 2000
(in this case, the modifications were required to have been notified or advertised for a period not exceeding 14 days).
The Court determined that because the earlier modifications to the development consent contained a jurisdictional error (i.e. they failed to publicly notify the applications), later modifications to the earlier consent could also be invalidated. This was because, in approving the modification, the consent authority took into account an irrelevant consideration, namely the earlier modified development consent.
Time limit extension allowed by Land and Environment Court
The Court also accepted the application to extend the time to commence proceedings. Ordinarily, the time limit is three months from the date of the decision. The factors relevant to the Court's exercise of discretion in allowing the extension included:
- the particular interest of the applicant, Ms Christine Fenwick, challenging the decision, in this case a local resident living on land adjacent to the development
- the time at which Ms Fenwick became, or should have with reasonable diligence become aware of the decision (which was not until the modification works had commenced on the site)
- the respondents' lack of opposition to the application being made
Applicants and consent authorities should adhere to proper procedure in assessment of section 96 modifications
It is important to note that in this case, the Court specifically pointed out (at ) that the Planning Assessment Report for the final modification "made it abundantly clear… that it was, in several material respects, premised on [the earlier modifications of the development consent]." Achieving the threshold for establishing the existence of irrelevant considerations may not be as easily demonstrated in cases where a later modification does not so explicitly rely upon earlier jurisdictional errors.
This case serves as a timely reminder for applicants and consent authorities to ensure that the proper legislative procedure in the assessment of section 96 modifications is followed so that jurisdiction is properly enlivened. Doing so can avoid significant cost and time implications.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2023.