On July 14, 2021, clause 121B of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) was introduced providing an express power to enable a modification application to be amended.

However, in a recent decision, the Land and Environment Court has found there is no power to amend a modification application determined before the commencement of clause 121B.

The Court also found there is no power, express or implied, to modify an application for a building information certificate.

Background

In Scarf v Shoalhaven City Council [2021] NSWLEC 128 (Scarf), the Applicant appealed to the Land and Environment Court against the refusal by Shoalhaven City Council to modify a development consent for an equine centre and temporary use of a building as a function centre. The appeal was heard concurrently with the Applicant’s appeal in respect of the Council’s deemed refusal of a building information certificate application.

In the Court proceedings, the Applicant sought to amend both the modification application and the application for the building information certificate.

Section 39(2) of the Land and Environment Court Act 1979 (LEC Act) provides that for the purpose of disposing of an appeal, the Court has all the functions and discretions the consent authority "had” in respect of the decision subject of the appeal.

At the time the Council refused the modification application, clause 121B of the EP&A Regulation had not been introduced.

Justice Pain found that, as a matter of statutory construction, the use of the word “had” in s39(2) of the LEC Act means that if the Council did not have power to amend the modification application at the time it refused the application (because clause 121B was not in place at that time), then neither does the Court on appeal.

In relation to the application for a building information certificate, her Honour applied the reasoning of the Chief Judge in Dartbrook and Justice Robson in Duke Developments in determining that there is no power, express or implied, to amend an application for a building information certificate.

What does this mean?

The immediate effect of the decision in Scarf is twofold.

1. First, Applicants cannot seek to amend modification applications which were determined by a consent authority prior to the coming into effect of cl 121B of the EP&A Regulation. There is no power to amend such applications. Practically, this is likely to mean an Applicant will have to discontinue appeal proceedings and lodge a fresh modification application, with the benefit of clause 121B which now provides an express power to amend.
2. Second, Applicants cannot amend an application for a building information certificate because there is no power in the Environmental Planning and Assessment Act 1979 (EP&A Act) or the EP&A Regulation to do so.

We also observe that there is no express power in the EP&A Act or the EP&A Regulation to amend an application for a subdivision certificate or an occupation certificate. There are appeal rights to the Land and Environment Court in respect of such applications, so it may only be a matter of time before the Court confirms there is also no express or implied power to amend applications for subdivision and occupation certificates. That would be, it seems to us, consistent with the Court’s approach in Dartbrook and Duke Developments.

In our opinion, urgent legislative amendment is required in order to address the issues arising from Scarf and the position with respect to applications for subdivision and occupation certificates.