Australian Consulting Architects Pty Ltd v Liverpool City Council

Outcome of the motions

1. Ultimately, the Court has determined to grant the Respondent Council's motion of 10 July 2017 seeking the dismissal of these proceedings. For the reasons set out in this judgment below, the Court has concluded that the Applicant's appeal is incompetent because the proceedings were commenced out of time.
2. With respect to the Respondent Council's second motion of 25 August 2017 - which seeks orders that the proceedings be dismissed as incompetent on the additional bases that the Applicant did not have owner's consent to lodge the development application and, in the alternative, because the named applicant in the Class 1 Application is a non-legal entity - the Court has decided that it is unnecessary to finally determine these issues or make consequential orders.
3. Notwithstanding the above outcomes, the Court has decided to grant, as a formality, the Applicant's motion of 23 August 2017 in part. In particular, the Court will make the second order sought: that is, that the Class 1 Application be amended by adding to the Applicant's name the following particulars: "Pty Ltd ACN 130 867 613". This will ensure that the Applicant for the purposes of the proceedings is properly identified as Australian Consulting Architects Pty Ltd. The Court has determined that this is necessary so that a proper legal entity is identified as a party to the proceedings: primarily so that the proper Applicant is thereby made amenable to the disposal of the proceedings.
4. However, with respect to the first order sought by the Applicant in its motion of 23 August 2017, given that the Court has determined that the proceedings are incompetent, it is clearly inappropriate for the Court to make the amendment sought, pursuant to section 39 of the Land and Environment Court Act 1979 and cl 55 of the Environmental Planning and Assessment Regulation 2000 ('the Regulation'), that Development Application 974/2015 be amended by adding to the Applicant's name "Pty Ltd ACN 130 867 613".
5. Whilst declining to make this amendment to the original development application, the Court observes that it is regrettable that the Applicant and Respondent Council did not properly check the legal status of the applicant for development consent at a much earlier stage in the development assessment process. This undesirable situation was further compounded by the Applicant lodging and the Respondent Council accepting, or at least not questioning, a land owner's consent lodged with the development application in favour of an entirely different entity, North Western Surveys Pty Ltd.

The relevant statutory framework

1. For this judgment, it is necessary to concisely set out the relevant parts of the statutory framework regarding: (a) the path to appealing a deemed refusal of development consent; (b) concurrence authorities and approval bodies; (c) the procedure for making a development application; (d) the procedure for amending a development application; and (e) development affecting roads and traffic.

The path to appealing a deemed refusal

1. The prescribed development assessment procedure under the EPA Act is primarily set out under Part 4 of the EPA Act and Part 6 of the Regulation. In particular, Division 2 of Part 4 of the EPA Act delineates the procedures for assessing development that needs consent and Division 5 delineates the special procedure for integrated development (see also Division 3 of Part 6 of the Regulation). Integrated development is development that requires development consent and one or more of the separate statutory approvals set out under s 91.
2. The conclusion of the development assessment process is the determination of the consent authority to either grant consent (subject to conditions or unconditionally) or refuse to grant consent to a development application: s 80. However, Division 2 of Part 4 of the EPA Act also provides for circumstances in which consent is taken to have been refused. Relevantly s 82(1) stipulates that: A consent authority that has not determined a development application within the relevant period, prescribed by the regulations, applicable to the development the subject of the development application is, for the purpose only of section 97, taken to have determined the application by refusing consent on the date on which the period expires.
3. If consent is taken to have been refused under s 82, the relevant applicant may appeal this deemed refusal to this Court pursuant to s 97(1)(b), but only within six months after the date of that deemed refusal.
4. In order to ascertain the date on which a development application is deemed to have been refused, it is necessary to refer to the clauses under Division 11 of Part 6 of the Regulation. The relevant period prescribed by the Regulation after which a development application is taken to have been refused (a 'deemed refusal') under s 82 of the EPA Act depends on what category of development the proposed development is. In the case of integrated development (as defined under s 91) and development for which the concurrence of a concurrence authority is required, the relevant "deemed refusal period", measured from the date on which "the development application is lodged", is prescribed as 60 days: cl 113(b)(ii)-(iii). This period of 60 days, as well as other periods, is defined as the "assessment period" for the purpose of Division 11 of Part 6: cl 106(d). In order to calculate this assessment period, and therefore ascertain the date on which a development application is deemed to be refused, one has to consider cls 107-112.
5. As will become apparent later in this judgment, it is useful to set out cl 110 in full: 110 Days occurring while concurrence authority's or approval body's request for additional information remains unanswered (1) Any day that occurs between the date on which a consent authority receives a concurrence authority's or approval body's request for additional information under clause 60 or 67 and: (a) the date occurring 2 days after the date on which the consent authority refers to the concurrence authority or approval body the additional information provided by the applicant, or (b) the date occurring 2 days after the date on which the consent authority notifies the concurrence authority or approval body that the applicant has notified the consent authority that the additional information will not be provided, whichever is the earlier, is not to be taken into consideration in calculating the number of days in any of the assessment periods. (2) Subclause (1) applies only if the relevant request is made within 25 days after the date on which the development application is received by the concurrence authority or approval body concerned. Note. The 25-day period may be extended by operation of clauses 107 and 108.
6. Given the interdependency of cl 110 with cls 60 and 67 and the relevance of these latter clauses to the amendment of development applications, it is also useful to set out these clauses in full: 60 Concurrence authority may require additional information (1) A concurrence authority whose concurrence has been sought may request the consent authority to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the question as to whether concurrence should be granted or refused. (2) The request: (a) must be in writing, and (b) may specify a reasonable period within which the information must be provided to the consent authority. (3) Immediately after receiving a request for additional information from a concurrence authority, a consent authority must request the applicant, in writing, to provide the information sought within the period specified by the concurrence authority. (4) Immediately after receiving the requested information from the applicant, the consent authority must forward that information to the concurrence authority. (5) Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided. (6) If the applicant for development consent has failed to provide any of the requested information by the end of: (a) any period specified as referred to in subclause (2) (b), or (b) such further period as the concurrence authority may allow, the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly. 67 Approval body may require additional information (1) An approval body the general terms of whose approval have been sought may request the consent authority to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the general terms of approval. (2) The request: (a) must be in writing, and (b) may specify a reasonable period within which the information must be provided to the consent authority. (3) Immediately after receiving a request for additional information from an approval body, a consent authority must request the applicant, in writing, to provide the information sought within the period specified by the approval body. (4) Immediately after receiving the requested information from the applicant, the consent authority must forward that information to the approval body. (5) Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided. (6) If the applicant for development consent has failed to provide any of the requested information by the end of: (a) any period specified as referred to in subclause (2) (b), or (b) such further period as the approval body may allow, the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly.

The statutory framework concerning concurrence authorities and approval bodies

1. As identified above, Division 5 of Part 4 of the EPA Act (and Division 3 of Part 6 of the Regulation) establishes a special development assessment procedure for integrated development. Most relevantly for these proceedings, s 91(1) provides that development will be integrated development if it requires both development consent and an approval under s 138 of the Roads Act 1993 ('Roads Act') (unless the development requires both development consent and a s 138 approval from the same council: s 91(3)) and/or an approval under ss 89, 90 or 91 of the Water Management Act 2000. Under this integrated development Division, an approval body is defined to mean a person who may grant a consent, licence, permit, permission or any other form of authorisation: s 90A (see also cl 3 of the Regulation).
2. The role of an approval body with respect to integrated development is significant. For example, s 91A(2) stipulates that: [b]efore granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development…
3. Unlike the term approval body, the term concurrence authority is not defined under the EPA Act. Rather, under cl 3 of the Regulation, a concurrence authority is defined to mean "a person whose concurrence is, by the Act or an environmental planning instrument … required by the consent authority before determining a development application". The relevant clauses of the Regulation that apply to development applications for which concurrence is required are found in Division 2 of Part 6: cl 58.
4. Under the EPA Act, section 79B is of particular importance for development applications for which concurrence is required. As can be seen below, s 79B draws a distinction between an obligation on a consent authority to consult with a person as opposed to an obligation to obtain the concurrence of a person prior to determining the development application: 79B Consultation and concurrence (1) General If, by an environmental planning instrument, the consent authority, before determining the development application, is required to consult with or to obtain the concurrence of a person, the consent authority must, in accordance with the environmental planning instrument and the regulations, consult with or obtain the concurrence of the person, unless the consent authority determines to refuse to grant development consent. (2) However, if, by an environmental planning instrument, the Minister, before determining a development application, is required to obtain the concurrence of a person, the Minister is required only to consult with the person. … (8) Granting or refusal of concurrence A person whose concurrence to development is required may: (a) grant concurrence to the development, either unconditionally or subject to conditions, or (b) refuse concurrence to the development. In deciding whether to grant concurrence, the person must take into consideration only the matters stated pursuant to section 30 (3) and applicable to the development (unless the relevant environmental planning instrument is a deemed instrument referred to in Division 2 of Part 21 of Schedule 6). … (9) Giving effect to concurrence A consent authority that grants consent to the carrying out of development for which a concurrence has been granted must grant the consent subject to any conditions of the concurrence. This does not affect the right of the consent authority to impose conditions under section 80A not inconsistent with the conditions of the concurrence or to refuse consent. (10) Avoidance of consents subject to concurrence If, by an environmental planning instrument, a development application may not be determined by the granting of consent without the concurrence of a specified person, a consent granted: (a) without that concurrence, or (b) not subject to any conditions of the concurrence, is, subject to sections 102-104, voidable. (11) However, if the specified person fails to inform the consent authority of the decision concerning concurrence within the time allowed for doing so, the consent authority may determine the development application without the concurrence of the specified person and a development consent so granted is not voidable on that ground. (12) Nothing in this section affects any liability of a consent authority in respect of a consent granted as referred to in subsection (10) (a) or (b).

The procedure for making a development application

1. As will become clear later in this judgment, it is important to set out the section of the EPA Act and the clause of the Regulation that set out the entitlement of a person to make a development application.
2. Section 78A(1) is in the following terms: 78A Application (1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.
3. Clause 49(1) is in the following terms: 49 Persons who can make development applications (1) A development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land.

The procedure for amending a development application

1. As will also become clear later in this judgment, it is important to set out the clause of the Regulation that delineates the procedure for amending a development application. Clause 55 is in the following terms: 55 What is the procedure for amending a development application? (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development. (3) If the development application is for: (a) development for which concurrence is required, as referred to in section 79B of the Act, or (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.

Some relevant provisions concerning roads and traffic

1. As mentioned above, s 91(1) provides that development will be integrated development if it requires both development consent and an approval under s 138 of the Roads Act (unless the development requires both development consent and approval from the same council: s 91(3)). Section 138, which sits under that Part of the Roads Act that regulates works, structures and activities, provides as follows: 138 Works and structures (1) A person must not: (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority. Maximum penalty: 10 penalty units. (2) A consent may not be given with respect to a classified road except with the concurrence of RMS. …
2. Under the Roads Act, a classified road is defined to mean: a main road, a highway, a freeway, a controlled access road, a secondary road, a tourist road, a tollway, a transitway, and a State work: s 4.
3. In addition to the EPA Act, the Regulation and the Roads Act, the State Environmental Planning Policy (Infrastructure) 2007 ('ISEPP') also regulates development concerning roads and traffic under Division 17 of Part 3. For these proceedings, cl 104 is of particular relevance: 104 Traffic-generating development (1) This clause applies to development specified in Column 1 of the Table to Schedule 3 that involves: (a) new premises of the relevant size or capacity, or (b) an enlargement or extension of existing premises, being an alteration or addition of the relevant size or capacity. (2) In this clause, relevant size or capacity means: (a) in relation to development on a site that has direct vehicular or pedestrian access to any road - the size or capacity specified opposite that development in Column 2 of the Table to Schedule 3, or (b) in relation to development on a site that has direct vehicular or pedestrian access to a classified road or to a road that connects to a classified road where the access (measured along the alignment of the connecting road) is within 90m of the connection - the size or capacity specified opposite that development in Column 3 of the Table to Schedule 3. (3) Before determining a development application for development to which this clause applies, the consent authority must: (a) give written notice of the application to RMS within 7 days after the application is made, and (b) take into consideration: (i) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, RMS advises that it will not be making a submission), and (ii) the accessibility of the site concerned, including: (A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and (B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and (iii) any potential traffic safety, road congestion or parking implications of the development. (4) The consent authority must give RMS a copy of the determination of the application within 7 days after the determination is made.

The Applicant's claim that the proceedings were commenced in time

1. As foreshadowed above, the Applicant advanced two arguments as to why the Court would accept that the proceedings were commenced within time.

The stopping of the clock argument

1. In order to contextualise the Applicant's first argument that these proceedings were commenced within time, it is necessary to set out the Applicant's analysis of the relevant 'assessment period' timeline following the lodging of the development application on 2 October 2015. That analysis, although somewhat unclear, appears to be to the following effect.
2. Whilst the development application was lodged on 2 October 2015, that day and 3 October 2015 are not to be included in calculating the assessment period: cl 107 of the Regulation. The development application was subsequently forwarded by the Respondent Council to RMS and the Department of Primary Industries Water on 4 November 2015. The days between 4 October 2015 (taken to be the first day in the assessment period) and 18 October 2015 (that is, 13 days) are not to be included in calculating the assessment period: cl 108(2)(b). Similarly, due to the Respondent issuing a 'stop the clock' letter to the Applicant requesting further information on 13 October 2015 (which was complied with on 20 October 2015), the days between 13 October 2015 and 20 October 2015 (that is, given the overlap, 2 further days) are not to be included in calculating the assessment period: cl 109(1)(a).
3. On 30 November 2015, RMS wrote to the Respondent Council seeking further traffic modelling information (which was said by the Applicant to be a request under cl 60 of the Regulation). On the Applicant's analysis, 30 November 2015 appears to be calculated as the 37th day of the assessment period (although it should be the 43rd day of the assessment period).
4. On 4 May 2016, RMS was provided with the requested information by the Respondent Council. (However, I interpose here to note that in providing this information, the Respondent Council stated that "[i]t is understood that the additional information required was provided to RMS by the applicant's traffic consultant Varga Traffic Planning Pty Ltd on 29 February 2016 …".)
5. The Applicant alleges that the days between 30 November 2015 and 6 May 2016 (2 days after the provision of further information) are not to be included in calculating the assessment period: cl 110(1)(a). The applicant submitted that RMS' request 'stopped the clock' under cl 110 because the request (made on 30 November 2015) was made within 25 days after the date on which RMS received the development application (4 November 2015): cl 110(2). In this respect, the Applicant submitted that 28 and 29 November 2015 are excluded from the calculation of the relevant 25 day period because they were a Saturday and Sunday: Interpretation Act 1987, s 36.
6. Hence, on the Applicant's analysis, the assessment period clock recommenced on 6 May 2016 (at which point only 37 assessment period days were said to have accrued [although, as mentioned above, it appears to be 43]). On this basis, the day on which the deemed refusal of the development application arose under s 82(1) of the EPA Act (that is, within 60 assessment period days commencing on 4 October 2015) was suggested to have occurred by the end of May 2016.
7. Consequently, the Applicant was said to have had six months from this point, under s 97(1) of the EPA Act, to commence these proceedings. As the proceedings were commenced well within this period (on 14 October 2016), the Applicant concluded that the proceedings were commenced on time.

Did RMS' request 'stop the clock'?

1. As is apparent from the Applicant's analysis set out above, the Applicant's stopping of the clock argument stands or falls on whether or not RMS' request for further information on 30 November 2015 stopped the assessment period clock until 6 May 2016. If not, and the clock continued to run throughout this period, this argument fails.
2. In its written submissions filed 14 August 2017, the Applicant argued that RMS' request (in its alleged capacity as a concurrence authority under the EPA Act) was made under cl 60 of the Regulation. As set out above, cl 60(1) provides that "[a] concurrence authority whose concurrence has been sought may request the consent authority to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the question as to whether concurrence should be granted or refused".
3. Consequently, the Applicant asserted that this cl 60 request by RMS enlivened cl 110, which provides for the stopping of the clock between the receipt of a concurrence authority's (or approval body's) request for additional information under cl 60 (or 67) by the consent authority and 2 days after the date on which the consent authority provides that information to the concurrence authority (or approval body).
4. At the hearing, the Court asked Mr Rigg, the solicitor for the Applicant, a series of questions as to whether RMS was, in fact, a concurrence authority under the EPA Act and the Regulation with respect to the Applicant's development application. The Court granted Mr Rigg's request for further time to prepare written submissions in response to these questions.
5. Mr Rigg's written submissions filed 21 August 2017 set out the Applicant's (revised) position that the Court should accept that RMS' request for further information "would properly be regarded as made under section 138(2) of the Roads Act and separately as a concurrence authority under [ISEPP]". This reflected a revised position because, at the hearing, Mr Rigg had stated that "I'm not going to be putting any reliance on s 138. I accept that that's not relevant" (Transcript, 15 August 2017, p 51).
6. The Applicant made the following submissions in support of its new claim that RMS' request for further information was made under s 138 of the Roads Act. Although not explained in much detail, the Applicant argued that the proposed development requires an approval pursuant to s 138 of the Roads Act because the proposed development would sever or remove the connection between an existing driveway on the Land and Camden Valley Way (which was suggested to be a classified road under the Roads Act). Accordingly, the Applicant suggested that the proposed development was, for this reason, integrated development under s 91 of the EPA Act. (I interpose here to note that it is uncontested that the proposed development is integrated development in that it requires an approval under the Water Management Act 2000.)
7. On the basis that the proposed development requires an approval under s 138 of the Roads Act, the Applicant suggested that RMS' role as a concurrence authority under the EPA Act became enlivened due to the operation of s 138(2) of the Roads Act, which provides that "[a] consent [under s 138(1) of the Roads Act] may not be given with respect to a classified road except with the concurrence of RMS". Thus, the Applicant concluded that "[d]ue to the proposed removal of the existing driveway access between Camden Valley Way and the site the RMS has sought additional information pursuant to its status as a concurrence authority under section 138(2) of the Roads Act…".
8. In support of this position, the Applicant noted that the development application form indicated (by way of a checked box) that such an approval under the Roads Act was required. Similarly, the Applicant noted that RMS' letter of 30 November 2015 requesting further information stated that the development application "was referred to Roads and Maritime Services (Roads and Maritime) for comment in accordance with section 138 of the Roads Act, 1993 and cl 104 of the State Environmental Planning Policy (Infrastructure) 2007".
9. The Applicant made the following submissions in support of its claim that RMS' request for further information was also made "separately as a concurrence authority under [ISEPP]". First, the Applicant asserted that the Applicant's proposed development engages cl 104 of the ISEPP (being development said by the Applicant to have direct pedestrian access to the classified road of Camden Valley Way: Transcript, 15 August 2017, p 45) because it is development specified in Column 1 of the table to Schedule 3 of the ISEPP as "subdivision of land" that involves "new premises of the relevant size or capacity" as defined in cl 104(2)(b) - that is, it is development of the size and capacity of "50 or more allotments": Column 3 of the table to Schedule 3 of the ISEPP.
10. Secondly, on the basis that cl 104 is enlivened for this development application, the Applicant contended that this clause of the ISEPP makes RMS a concurrence authority for the purposes of the EPA Act. This was said to be because cl 104(3) requires the consent authority to notify RMS of the development application and "take into consideration any submission that RMS provides in response to that notice…". This requirement was said by the Applicant to make RMS a concurrence authority within the meaning of the EPA Act.
11. In the Applicant's words: "So by virtue of subcl (3) of 104 the consent authority must, before determining the application, give notice to the RMS and take into consideration any submissions that the RMS provides in response to the notice. That is not, in the applicant's submission, a consultation approach. It is a statutory approach which necessitates concurrence, or requires the consent authority to have concurrence with the RMS prior to the granting of a development application" (Transcript, 15 August 2017, p 44).
12. In this respect, it should also be noted that the Court put to Mr Rigg the following proposition: "…all RMS needs to do is respond, and the consent authority, the council merely needs to take it into consideration" (Transcript, 15 August 2017, p 44). In response, Mr Riggs said "Yes. And that's the circumstance with a great deal of concurrence authority referrals. The council is not, other than with certain prescribed planning instruments, required to immediately refuse the application if general terms of approval have not been, for example, given by a concurrence authority." (Transcript, 15 August 2017, p 44).
13. For these reasons, the Applicant concluded that "[t]he request made for additional information by the RMS on 30 November 2017 would properly be regarded as made under section 138(2) of the Roads Act and separately as a concurrence authority under SEPP (Infrastructure) 2007". Hence, as explained above, the Applicant maintains that the proceedings were commenced within time and are not incompetent.

The resetting of the clock argument

1. The Applicant's second argument in support of its claim that these proceedings were commenced within time is that the clock for measuring the 60 day assessment period after which the development application is taken to be refused (and from which the six month period for appealing the deemed refusal commences) was reset by dint of "the separate amendments of DA 974/2015 on 24 February 2016; 15 April 2016; 28 April 2016 … and on or around 3 May 2016…".
2. The Applicant contended that if the development application was amended under cl 55 of the Regulation on any of these occasions, then the clock for assessing when the application was deemed to have been refused (and, therefore, the consequent six month window for appealing that deemed refusal) was reset from the date of the amendment. To make good this argument, the Applicant sought to establish that: (1) a valid amendment to a development application does reset the clock; and (2) the alleged amendments were valid amendments under cl 55.
3. The Applicant submitted that it is well-established that, for the purposes of cl 113 of the Regulation, the appeal period for commencing Class 1 proceedings runs from the date of the lodgement of an amended development application rather than the date of lodgement of the original development application. The Applicant said that this position is confirmed by the following decisions: Ipoh Pty Ltd v Sydney City Council (2005) 142 LGERA 373; [2005] NSWLEC 514 and Integral Energy Pty Ltd v Blue Mountains City Council [1998] NSWLEC 284. Insofar as a contrary view was expressed in Songkal Pty Ltd v Warringah Council (2000) 111 LGERA 71; [2000] NSWLEC 215, the Applicant emphasised that this view was subsequently expressly retracted in Lateral Estate Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 6 at [30]. Hence, the Applicant stated that "…the only issue which is alive on the 'Amended Development Application' contention is whether the Applicant's amendments … may properly be regarded as accepted or agreed amendments pursuant [to] clause 55".
4. In order to determine whether the amendments alleged by the Applicant were valid amendments under cl 55 of the Regulation, the Applicant submitted that it is important to appreciate that the clause should be interpreted as being "beneficial and facultative" and, therefore, given "the widest interpretation which its language will permit": Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 at [9] and Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 260-261; [1991] HCA 45. This was said to be consistent with the purpose of cl 55: first, to enable applicants to respond to any issues identified by the consent authority or objectors and, secondly, to encourage a consent authority to solicit a better outcome: Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 at [40]. Finally, the Applicant drew the Court's attention to the decision of Pepperwood Ridge Pty Ltd v Newcastle City Council [2007] NSWLEC 719 as being "instructive of the type of actions which evidence an acceptance of amendments to a development application".
5. In this context, the Applicant proceeded to consider each alleged amendment seriatim.
6. First, the Applicant asserted that the development application was validly amended under cl 55 on 24 February 2016. As evidence of this, the Applicant relied upon an e-mail from Mr Ahmed Albanna (the Applicant's contact person for the development application) to the relevant officer(s) of the Respondent Council (Affidavit of Peter Rigg filed 7 August 2017, Tab F, p 23). The relevant part of this e-mail reads: Please see attached amended layout showing changes to the drainage Reserve and the Community title areas. old (sic) boundaries shown in red. Note that we have shown the existing piped easement remaining and we have allowed additional land on those lots affected. It would be possible to redirect water and pipe to adjoin roadway (at a cost) and then extinguish easement. Please provide feedback at your earliest convenience. We are working on the other comments mentioned in Council's letter and will provide the requested information soon.
7. The Applicant submitted that this e-mail (and its attached amended layout) was an application to amend the development application that directly responded to suggested changes in a letter sent by the Respondent Council to the Applicant on 18 February 2016. Relevantly, the Applicant emphasised the following passages in this letter of 18 February 2016: Thank you for your application which seeks approval for the abovementioned development. A preliminary assessment of your application has been carried out and a number of issues have been identified and additional information is required to be provided to enable us to appropriately assess the application. This information is requested in accordance with Clause 54 of the Environmental Planning and Assessment Regulations 2000 (sic). The issues identified/additional information required is as follows: … 1. Road Pattern The proposal to include a section of Community Title lots within the overall subdivision at the northern end of the site is not supported. It is recommended that you consider revising the subdivision pattern in this location to provide minimum 14.5m wide roads in association with Torrents (sic) Title subdivision. Some scope may exist, as discussed at the meeting with Council officers on 18 February 2016 to pipe the drainage easement adjacent to Blackman Crescent and to provide a road over the land shown as drainage reserve, thus providing an increased lot yield. Ideally, lots should front the drainage reserve if it is retained, however it is recognized that consistency with the adjoining subdivision pattern needs to be taken into consideration. 2. Transmission Line Easement A number of lots within the proposed subdivision are located within the Transmission Line Easement that runs north south through the site. Whilst these lots have been provided with an increased lot area to accommodate the construction of a dwelling it is considered that these lots … will result in poor amenity for future occupants. Consideration should be given to a revised lot layout which minimizes the occurrence of residential lots within the Transmission Line Easement. Where lots are proposed within the easement an indicative building footprint should be provided to demonstrate that sufficient area clear of the easement is provided for the siting of a dwelling and garage with appropriate driveway access and which will relate to the streetscape and to dwellings on adjoining lots. … 5. Traffic matters NSW Roads and Maritime Services has reviewed the submitted application and has advised that it cannot make an informed comment in its current form. RMS has advised that there are existing delays at the traffic control signals of Camden Valley Way and Horningsea Park Drive. Therefore traffic modelling of the intersection is required to consider the traffic impacts of eth (sic) proposed development scenario reflecting the proposed additional 139 lots. The electronic analysis should be undertaken and submitted to Council for referral to the RMS… CONCLUSION Further information is recommended, as detailed above. In order for the application to progress in a timely and efficient manner, it is requested that the information be submitted at your earliest convenience…
8. On this evidence, the Applicant submitted that the Respondent Council's letter contained clear statements that it took issue with the Applicant's development application and sought "the Applicant's agreement to amend or revise the lot layout in the manner described" (Transcript, 15 August 2017, p 34). Similarly, the Applicant submitted that the amendments proposed by the Applicant by way of its e-mail "were very much responsive to a request, and we submit it's not logical for a consent authority to request a change, and then if the change is agreed by the lodgement of plans, then to reject, or not agree, in the context of cl 55. In other words, an applicant that has been requested to amend, is amending pursuant to an agreement that has already commenced" (Transcript, 15 August 2017, p 37). The Applicant emphasised this point by concluding that "…where a council actually requests the modification to the development application, and the applicant accepts the invitation, or the request, the agreement has been made upon the submission of that material. That is when the application is amended" (Transcript, 15 August 2017, p 38).
9. Thus, the Applicant submitted that because the Respondent Council had allegedly requested amendments to the development application, and the Applicant had submitted some of those amendments on 24 February 2016 without any rejection from the Respondent Council, those amendments should be taken to have been accepted by the Respondent Council.
10. In these circumstances, the Respondent Council's omission to reject the proposed amendment constituted acceptance under cl 55. Indeed, the Applicant submitted that the relevant officer of the Respondent Council, in an internal e-mail of 29 February 2016, indicated that the amendments were not only requested but that the Respondent Council "accepted [the Applicant's proposed amendments] in full embrace"; "the amended subdivision layout has done essentially what council wanted; that is, the deletion of community title" (Transcript, 15 August 2017, p 52). Consequently, the proposed amendment of the development application was, according to the Applicant, amended "with the agreement of the consent authority" pursuant to cl 55(1).
11. Moreover, in response to a question from the Court, the Applicant submitted that the above mentioned e-mail did have "written particulars sufficient to indicate the nature of the changed development" as required under cl 55(2). In this respect, the Applicant said that "the word 'sufficient' should, consistently with what the Court has said about cl 55, be given a very wide meaning in the present circumstances. Those circumstances are that the Respondent Council had requested the change and knew what the changed was intending to do" (Transcript, 15 August 2017, p 43). Hence, the Applicant submitted that the requisite "written particulars" comprised the depiction by way of the amended illustrated plans.
12. Finally, again in response to a question from the Court, the Applicant denied that the requirement in cl 55(3) to immediately forward an amended development application to any concurrence authority or approval body (if applicable) supported a stricter interpretation of the requirements of cl 55 - that is, if it is not clear that a submission to the consent authority is an amended development application, it may not be forwarded onto the concurrence authority or approval body. The Applicant submitted that this issue would not arise because cl 55(3) should be interpreted so as to only be enlivened if the amendment is relevant to the concurrence authority or approval body. In the Applicant's words: "If, however, the amendment is an amendment to the application's documentation, and, for example, doesn't change at all the development, which is proposed by the application, a proper interpretation adopting the purpose of that provision would not be engaged" (Transcript, 15 August 2017, pp 56-57).
13. Secondly, the Applicant asserted that the development application was validly amended under cl 55 on 15 April 2016. As evidence of this, the Applicant relied upon an e-mail from Mr Shane Harding (a person associated with the Applicant) to a relevant officer of the Respondent Council sent on 15 April 2016 (Affidavit of Peter Rigg filed 7 August 2017, Tab F, p 31). The relevant part of this e-mail reads: In response to correspondence from Council dated 18 February 2016, I provide the following responses: … 2. Road Pattern: The amended plan of subdivision is attached for Council's consideration. a. In relation to the existing drainage easement, would it be an option to pipe this under Blackman Crescent and extinguish the easement?
14. Similarly to the Applicant's alleged first amendment outlined above, the Applicant submitted that this e-mail (and the attached amended plans) constituted an amendment under cl 55 of the Regulation which implemented the changes proposed by the Respondent Council in its letter of 18 February 2016. To reiterate the Applicant's words, "[n]ow it's clear that these amendments … were very much responsive to a request, and we submit it's not logical for a consent authority to request a change, and then if the change is agreed by the lodgement of plans, then to reject, or not agree, in the context of cl 55" (Transcript, 15 August 2017, p 37). To this end, the Court was invited to accept the proposition that the language of "only with the agreement of the consent authority" under cl 55 could be interpreted to encompass "agreement having been given in the absence of rejection" (Transcript, 15 August 2017, p 39).
15. As above, the Applicant repeated its submission that the e-mail of 15 April 2016 could be taken to satisfy the requirements of cl 55 because, in the context that this e-mail was a response to the Respondent Council's letter, the e-mail contained sufficient "written particulars". The 'descriptors' used in the e-mail would have provided sufficient information for the Respondent Council to understand both that it was an application to amend and what those relevant amendments to the road pattern were, by comparing the old and new plans (Transcript, 15 August 2017, p 40). In essence, the Applicant said that "…even if there be a lack of a table showing revision numbers [in the attached amended subdivision plans], the dating of these plans, 11 April 2016, providing all the information that one would expect to have incorporated in final subdivision plans" sufficiently described the proposed amendments.
16. Thirdly, the Applicant asserted that the development application was validly amended under cl 55 on 28 April 2016. As evidence of this (although unclear), the Applicant appeared to rely on another e-mail (and attached amended plans of subdivision) sent from Mr Harding to a relevant officer of the Respondent Council on 28 April 2016 which relevantly stated: Please see attached updated subdivision plans which show building footprints on the respective lots affected by the Transgrid easement (Sheets 2 - 5). I can provide individual lot designs if required?
17. This e-mail was sent in response to an e-mail from an officer of the Respondent Council which said "I can't seem to find the plan with building footprints referred to at yesterday's meeting. Would you mind forwarding me another copy?". It can be inferred that the Applicant repeated its above submissions with respect to this alleged amendment pursuant to cl 55 of the Regulation.
18. Fourthly, the Applicant asserted that the development application was validly amended under cl 55 on or around 3 May 2016. Although somewhat unclear, it appears that the Applicant's position with respect to this amendment was that the development application was amended pursuant to cl 55 at this time because the Respondent Council forwarded a revised traffic report (provided by the Applicant) to RMS on 4 May 2016. Hence, given that this revised traffic report was requested by the Respondent Council (in its above mentioned letter of 18 February 2016, in response to an earlier request from RMS), it appears to be the Applicant's contention that the Respondent Council's act of forwarding this revised traffic report to RMS on 4 May 2016 is evidence that, immediately before so doing, the Respondent Council agreed to the development application being amended so as to include this revised traffic report.
19. In the Applicant's words: … in my submission that traffic report was a report that amended the development application … The amendment caused to the development application by the submission of that additional material, that additional information responsive to a issue raised by the council, and the RMS, amended the application in a way that when the information was lodged, the application was amended and the time, or the deemed refusal period, and the appeal time changed so that the appeal was not out of time and the motion would be dismissed. (Transcript, 15 August 2017, p 61).
20. As above, the Applicant argued that the Respondent Council accepted this amendment of the development application in a manner that, in the circumstances of this case, complied with cl 55: There's no evidence about the report being sent back to the applicant. No, we don't really want a traffic report addressing the intersection. We made a mistake back on 18 February 2016. We don't need it anymore. We don't accept it. No, the information was indeed accepted. It was, in fact, referred on to the RMS, and the RMS responded with their conditions, and the request was made for the additional information because the RMS had been concerned that appropriate traffic modelling had not formed part of the development application. (Transcript, 15 August 2017, p 38).

The Respondent Council's claim that the proceedings were not commenced in time

1. The Respondent Council contended that the Applicant's Class 1 appeal was commenced out of time and is therefore incompetent. In advancing this contention, the Respondent Council challenged both the Applicant's 'stopping of the clock argument' and its 'resetting of the clock argument'.

The rebuttal of the stopping of the clock argument

1. In order to contextualise the Respondent Council's argument that these proceedings were commenced out of time, it is necessary to set out the Respondent Council's analysis of the relevant 'assessment period' timeline following the lodging of the development application on 2 October 2015. That analysis was to the following effect.
2. Whilst the development application was lodged on 2 October 2015, that day and 3 October 2015 are not to be included in calculating the assessment period: cl 107 of the Regulation. The development application was forwarded by the Respondent Council to RMS and the Department of Primary Industries Water on 4 November 2015. The days between 4 October 2015 (taken to be the first day in the assessment period) and 18 October 2015 are not to be included in calculating the assessment period: cl 108(2)(b). Similarly, due to the Respondent issuing a 'stop the clock' letter to the Applicant requesting further information on 13 October 2015 (which was complied with on 20 October 2015 [The Respondent Council mistakenly said 23 October 2015]), the days between 13 October 2015 and 20 October 2015 (that is, given the overlap, 2 further days) are not to be included in calculating the assessment period: cl 109(1)(a).
3. As the assessment period recommenced on 20 October 2015 without further interruption, the Respondent Council submitted that the deemed refusal provision became enlivened once the 60 day assessment period expired: being late December 2015. Consequently, the six month period for appealing the deemed refusal was said to have ended in late June 2016, some months before the Class 1 Application commencing proceedings was filed on 14 October 2016.

Did RMS' request 'stop the clock'?

1. The Respondent Council argued that RMS' request for further information on 30 November 2015 did not stop the assessment period clock until 6 May 2016 for two reasons.
2. First, the Respondent Council contended that RMS' request for further information did not stop the clock under cl 110 of the Regulation because its request was not made pursuant to cl 60 (which empowers a concurrence authority to request further information) or cl 67 (which empowers an approval body for integrated development to request further information). In the circumstances of the present development application, the Respondent Council ultimately submitted that RMS "is neither a concurrence nor integrated authority" and, therefore, RMS' request could not stop the clock.
3. In short, the Respondent Council argued that RMS is not a concurrence authority with respect to the present development application because the proposed development is not development that, in order to be carried out, requires RMS' concurrence under s 138(1)(e) of the Roads Act: cf s 91 of the EPA Act. The starting point, according to the Respondent Council, is that RMS will only be a concurrence authority under the Roads Act where a person seeks consent under that Act to "connect a road (whether public or private) to a classified road": s 138(1)(e) and (2). Thus, taking a purposive approach, the Respondent Council said that "the words used in their context give RMS concurrence for any works impacting adversely upon a public road … [not] in respect of any lessening of impact upon a public road".
4. In this context, the Respondent Council submitted that the present development application does not seek to connect a road to a classified road. Conversely, it was said that the development seeks to disconnect the Land from the classified road of Camden Valley Way. Hence, on a proper interpretation of s 138(1)(e) and (2), the Respondent Council concluded that RMS is not a concurrence authority.
5. In support of this position, the Respondent Council drew attention to the fact that RMS "at all times make reference to referral for comment only" and that the ticking of the Roads Act approval box on the development application form, and consequent lodging of a cheque made out in favour of RMS, by the Applicant were merely errors (confirmed by the returning of the cheque to the Applicant prior to the referral of the development application to RMS for comment).
6. Additionally, the Respondent Council rejected the Applicant's argument that RMS is a concurrence authority by dint of cl 104 of the ISEPP. The Respondent Council denied that cl 104 applied to the present development because the proposed development does not have site access to the classified road of Camden Valley way: cf Column 3 of Schedule 3 to the ISEPP. In any event, the Respondent Council submitted that cl 104(3) only requires the consent authority to take into consideration any submission made by RMS. Hence, RMS is not elevated to become a concurrence authority by dint of cl 104 of the ISEPP because its concurrence is not required under that clause.
7. Secondly, and alternatively (assuming that RMS is a concurrence authority or approval body), the Respondent Council contended that RMS' request for further information on 30 November 2015 did not stop the clock under cl 110 of the Regulation because the request was not made within 25 days after the date on which the development application was received by RMS (4 November 2015): cf the requirement in cl 110(2) of the Regulation.

The rebuttal of the resetting of the clock argument

1. The Respondent Council denied that any of the Applicant's four alleged amendments of the development application were amendments within the meaning of cl 55 of the Regulation.
2. First, with respect to the alleged amendment of 24 February 2016, the Respondent Council submitted that the amended layout was a draft document and "not an application with particulars sufficient to meet the cl 55 requirement of being an amended application": citing Lateral Estate Pty Ltd v The Council of the City of Sydney. In particular, the Respondent Council said that it was important that the Applicant's representative asked for feedback "at your earliest convenience". According to the Respondent Council, "…a document which is requesting feedback at earliest convenience doesn't rise so high as to be a document to which is attached sufficient particulars to enable the consent authority to identify that what they have before it is an amended application" (Transcript, 15 August 2017, p 24). Moreover, the Respondent Council asserted that "there was no agreement of the consent authority to any such 'application'": citing Lateral Estate Pty Ltd v The Council of the City of Sydney.
3. Secondly, with respect to the alleged amendment of 15 April 2016, the Respondent Council submitted that the relevant e-mail "is not evidencing anything in its final form, in my submission, to rise so high as to be a document which … might be considered to be an amended application. So in my submission it's not in its final form. There are matters outstanding, and that is referred to in terms in that document" (Transcript, 15 August 2017, p 29). Furthermore, the Respondent Council argued that the e-mail does not meet the requirement of cl 55(2) in that it failed to have annexed to it sufficient written particulars "to alert the council to the fact that what the council was being asked to consider was an amended application" (Transcript, 15 August 2017, p 29).
4. Thirdly, with respect to the alleged amendment of 28 April 2016, the Respondent Council submitted that no agreement of the consent authority was requested or provided to any amended 'application'. As put by the Respondent Council, "[I]t doesn't sufficiently meet the requirements of cl 55(2) to sufficiently describe and have the consent authority become apprised of the fact that what they have before them is asserted to be an amendment to the development application" (Transcript, 15 August 2017, p 24).
5. Fourthly, with respect to the alleged amendment of 3 May 2016, the Respondent Council said that there is no document before to Court to show what that asserted amendment was and how that amendment was lodged with the Respondent Council. Hence, the Respondent Council suggested that it is not possible on the available evidence for the Court to conclude that any such amendment was made pursuant to cl 55 of the Regulation.
6. Ultimately, the Respondent Council argued that all of the four alleged amendments under cl 55 fall foul of the holding of Sheahan J in Lateral Estate Pty Ltd v The Council of the City of Sydney at [93]: A specific form is not prescribed for an amendment to a DA, but it must be made clear to the consent authority that an amendment is proposed. Only then can the consent authority agree to allow the amendment, and do whatever else it is obliged to do, and only then can "deferred refusal" rights arise again.

The Applicant's application to amend the Class 1 Application and the development application

1. As mentioned above, the Applicant seeks to, pursuant to cl 55 of the Regulation and s 39 of the Land and Environment Court Act 1979, amend the development application in these proceedings to substitute the name of the current Applicant ('Australian Consulting Architects') for the correct name of the relevant legal entity ('Australian Consulting Architects Pty Ltd') and to include its ACN (being 130 867 613). Similarly, the Applicant seeks to amend the Class 1 Application in these proceedings to correct an identical error.

The Respondent Council's response to the application to amend

1. The Respondent Council did not ultimately significantly contest the Applicant's application to amend the Class 1 Application to correct the Applicant's name. The Respondent Council hesitantly conceded that this may be appropriate to ensure that the Court has before it an applicant - that is, a legal person -before making any further orders in these proceedings (including an order to dismiss the appeal as incompetent).
2. However, whilst it was recognised that the Court may be "minded to allow the name amendment in order to be satisfied it may make orders in respect of a legal entity", it was not accepted that the Court should amend the original development application in the manner sought by the Applicant. Rather, the Respondent Council contended that this application should be rejected because the development application was lodged without the relevant owner's consent and by an unknown entity and, therefore, the present proceedings were said to also be incompetent on this basis.
3. If the proceedings are incompetent (on this basis or because the proceedings were commenced out of time), the Respondent Council reasoned that (as set out below) the Court does not have the jurisdiction to amend the development application or hear this appeal.

The Respondent Council's claim that the proceedings are incompetent because the application was lodged without owner's consent and by a non-entity

1. The Respondent Council claims that there has never been an effective development application lodged with it and that, therefore, the Applicant could not appeal any deemed refusal of such a non-effective development application: citing Duke Investments Trust Pty Ltd v Leichhardt Municipal Council [2000] NSWLEC 14 at [12]. Hence, the Court was said only to have the power to dismiss the present proceedings as incompetent: citing Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) (2013) 197 LGERA 238; [2013] NSWLEC 146.
2. The reason why the Respondent Council claims that there was never an effective development application is because, contrary to the EPA Act and Regulation, the development application "was lodged by [Australian Consulting Architects] in October 2015 without the relevant owner's consent and by an unknown entity".
3. With respect to the latter allegation, the Respondent Council submitted that the named applicant on the development application (being Australian Consulting Architects) was an unknown entity incapable of lodging a development application. In the Respondent Council's words, "…the ACA was just a non-entity" (Transcript, 25 August 2017, p 8). Therefore, as there was no person or entity who lodged the development application with the Respondent Council, the Respondent Council contended that no person or entity could validly claim to be an applicant entitled to institute an appeal under the EPA Act: citing Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [70].
4. Furthermore, the Respondent Council submitted that it is of some significance that the consequential steps following the purported lodgement of the development application - such as public notification and exhibition - did not properly identify an applicant for consent and, therefore, denied the public "an opportunity to understand who the applicant in the proceedings are through the notification process" (Transcript, 25 August 2017, p 8). In this respect, the Respondent Council distinguished Duke Investments Trust Pty Ltd v Leichhardt Municipal Council - where the true applicant company was "readily discernible to potential objectors upon viewing the common seal stamp on the [development application] form". Additionally, it was argued that the substitution of "a different company with a potentially different history", for the named applicant on the development application following the process of public exhibition, would contravene the EPA Act: citing Duke Investments Trust Pty Ltd v Leichhardt Municipal Council.
5. With respect to the former allegation concerning owner's consent, the factual basis provided by the Respondent Council for this claim is as follows. The Respondent Council submitted that the evidence before the Court only establishes that the former owner of the relevant land, Trash & Treasure Australia Pty Ltd, granted consent to North Western Surveys Pty Ltd to lodge the development application. The Respondent Council asserted that this (former) owner of the Land did not grant any such owner's consent to Australian Consulting Architects (or Australian Consulting Architects Pty Ltd). Moreover, the Respondent Council stated that "[t]here remains no evidence of a relationship between ACA, or ACA Pty Ltd, and Trash and Treasure…".
6. However, the Respondent Council did acknowledge the evidence that the new owner of the relevant land is Greenlands HP Pty Ltd and that its sole director and secretary, Mr Joseph Abboud, has signed a letter of 24 August 2017 addressed to this Court and the Respondent Council which, in terms, grants the owner's consent of Greenlands HP Pty Ltd to Australian Consulting Architects Pty Ltd "to make the subject development application. And to take any necessary proceedings to appeal under section 97 of the [EPA Act]".
7. In this factual context, the Respondent Council submitted that the development application was not effective because it was lodged without the relevant owner's consent. Accordingly, it was said that the Court does not have the power "to substitute Trash and Treasure's owner's consent granted to North Western Surveys Pty Ltd in 2015 with Greenland's owner's consent to ACA Pty Ltd dated 24 August 2017, in other words substitute the true Applicant at the date the application was lodged in October 2015 with a successor in title some 22 months later".
8. In essence, the Respondent Council argued that Australian Consulting Architects (or Australian Consulting Architects Pty Ltd) was not, for the purposes of s 97 of the EPA Act, "the applicant" because, under cl 49 of the Regulation, it was not (without owner's consent) a person entitled to make the development application. Therefore, the Respondent Council asserted that Australian Consulting Architects (or Australian Consulting Architects Pty Ltd) was not entitled to appeal any deemed refusal of a non-effective development application. Moreover, the Respondent Council submitted that the Court has no power to substitute a successor in title as the true applicant in these appeal proceedings: citing Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [49]-[52].
9. In support of its claim, the Respondent Council reasoned that the line of decisions in which a missing owner's consent has been able to be cured during proceedings (citing the decisions of Botany Bay City Council v Remath Investments No. 6 Pty Limited (2000) 50 NSWLR 312; [2000] NSWCA 364 and Rose Bay Marina Pty Ltd v Minister for Urban Affairs and Planning (2002) 122 LGERA 255; [2002] NSWLEC 123) is distinguishable to the present circumstances.
10. This was said to be because, in the Respondent Council's words "…the failure of owner's consent was not a missing owner's consent but a case in which the owner at the date of lodgement gave no owner's consent to ACA as it had already given owner's consent to North Western Surveys Pty Ltd. Now that the land has changed hands, Trash and Treasure cannot ever give ACA or ACA Pty Ltd owner's consent". In particular, the Respondent Council submitted that the Applicant could not rely upon Maule v Liporoni (2002) 122 LGERA 140; [2002] NSWLEC 25 because that decision could only have assisted the Applicant if the Applicant had become the new owner of the Land, rather than Greenlands HP Pty Ltd.

The Applicant's claims regarding its application to amend and the issue of owner's consent

1. In support of its application to amend the development application - pursuant to cl 55 of the Regulation and s 39 of the Land and Environment Court Act 1979 - the Applicant contended that this ought to be done because these amendments would merely remedy a clear and obvious typographical error.
2. The Applicant submitted that, in having regard to the development application form, it is evident that North Western Surveys Pty Ltd completed and signed the development application form. In so doing, an error was made by describing the applicant as Australian Consulting Architects rather than Australian Consulting Architects Pty Ltd: "[i]t is very clear that when North Western Surveys Pty Ltd lodged and paid the DA fees for their client Australian Consulting Architects Pty Ltd that they made an error by the omission of 'Pty Ltd' from their description of their applicant client".
3. The fact that this was a mere typographical error was said to be demonstrated by the subsequent naming of the client as "Australian Consulting Architects Pty Ltd" by North Western Surveys Pty Ltd on various plans filed on 10 August 2017 before the Applicant's identity became an issue in these proceedings.
4. In these circumstances, the Applicant submitted that it is appropriate for the original development application (by way of the "beneficial and facultative" power conferred by cl 55 of the Regulation) and the Class 1 Application (under s 39 of the Land and Environment Court Act 1979) to be appropriately amended: citing Duke Investments Trust Pty Ltd v Leichhardt Municipal Council.
5. It should be noted that the Applicant denied that any prejudice would be caused to the public if the Court was to make the orders that it seeks. The Applicant submitted that the present circumstances do not involve designated development and, therefore, third party objectors (who could have been misled by any erroneous description of the applicant for consent). In any event, the Applicant submitted that the name "Australian Consulting Architects" (rather than "Australian Consulting Architects Pty Ltd") was sufficiently clear to identify the real applicant.
6. In support of its rebuttal of the Respondent Council's claim that the proceedings are incompetent because the development application was lodged by Australian Consulting Architects without the relevant owner's consent, the Applicant submitted that the Court should take this requirement to be satisfied by the recent provision of the requisite consent from the current owner of the Land, Greenlands HP Pty Ltd, to Australian Consulting Architects Pty Ltd.
7. On the basis that Australian Consulting Architects Pty Ltd has always been the applicant seeking development consent; it was argued that it is well-established that owner's consent can be provided after the commencement of a Class 1 appeal (but prior to the granting of consent): citing Maule v Liporoni (2002) 122 LGERA 140; [2002] NSWLEC 25; Glendinning Minto Pty Ltd v Gosford City Council [2010] NSWLEC 1151; and IGS Enterprises Pty Ltd v Hornsby Shire Council (2008) 164 LGERA 424; [2008] NSWLEC 304. Thus, the Applicant submitted that "[i]n this particular case, the matter of owner consent becomes relevant only when the granting of development consent is about to occur" (Transcript, 25 August 2017, p 14).

Consideration

1. As has been set out above, the Court has before it the following principal issues for consideration: (1) whether RMS' request for further information 'stopped the clock' such that these proceedings were commenced within time; (2) whether the development application the subject of these proceedings was amended on four specific dates such that the clock for ascertaining the date on which the development application was deemed to have been refused was reset; (3) whether the Court should amend the name of the Applicant in the Class 1 Application to become "Australian Consulting Architects Pty Ltd"; (4) whether these proceedings are incompetent because the development application was lodged without, allegedly, the relevant owner's consent and by an unknown entity; and (5) whether the development application should be amended to substitute "Australian Consulting Architects Pty Ltd" for "Australian Consulting Architects" as the name of the applicant for development consent.

RMS' request for further information did not 'stop the clock'

1. The Applicant's primary stopping of the clock argument stands or falls on whether the RMS' request for further information on 30 November 2015 stopped the assessment period clock until 6 May 2016 by dint of cl 110 of the Regulation. For the Applicant to succeed on this argument, it was required to successfully rebut the Respondent Council's allegation that RMS' request did not enliven cl 110 because RMS was not a concurrence authority or approval body within the meaning of that clause. To this end, as has been set out above, the Applicant ultimately argued that the RMS was a concurrence authority by reason of s 138 of the Roads Act and, separately, cl 104 of the ISEPP.
2. The Court has decided that the Applicant's stopping of the clock argument must fail because RMS is not a concurrence authority (or approval body) with respect to the development application the subject of these proceedings. Hence, RMS' request for further information did not enliven cl 110 of the Regulation so as to stop the assessment period clock. To explain why this is so, it is convenient to first analyse the Applicant's argument with respect to cl 104 of the ISEPP and then, secondly, analyse the argument with respect to s 138 of the Roads Act.
3. If cl 104 of the ISEPP applies to the proposed development the subject of these proceedings (which is contested by the Respondent Council), sub-clause (3) requires the consent authority to, inter alia, take into consideration any submission that RMS provides in response to the written notice of the development application given to it by the consent authority (if that response is given within 21 days after the notice was given) before determining the development application.
4. This cl 104 requirement does not require the consent authority to obtain the concurrence of RMS before determining the development application. The Oxford English Dictionary defines "concurrence" to mean "agreement, assent or consent". In other words, the consent authority is not required by this clause to obtain the agreement, assent or consent of RMS before it determines the development application. It must only consider RMS' response to the development application. Had the RMS been a concurrence authority then its concurrence would have been required. Further, even the mere consideration of RMS' response is not required if that response is not provided within 21 days after the consent authority gives RMS notice of the development application. (I interpose here to note that RMS' first response to the Respondent Council's written notice of the application - being a request for further information made on 30 November 2015 - appears to have been beyond this specified 21 day response time.) Thus, it would be open to the consent authority, under cl 104, to favourably determine a development application in the face of the most strident protestations of the RMS, so long as RMS' response was taken into consideration by the consent authority.
5. In contrast to cl 104, cls 84, 86, 88 and 100 of the ISEPP do explicitly condition the power of a consent authority to grant consent for particular development with the requirement that consent only be granted with the concurrence of another person. In particular, cl 100 of the ISEPP presents a stark contrast to cl 104. Clause 100(1) (which does not apply in this case) stipulates that "[c]onsent for development for any of the following purposes on land reserved for the purposes of a classified road … may be granted only with the concurrence of the chief executive officer of RMS" (although see cl 100(5)). (Clause 100 deals with development proposed on land reserved for the purposes of a proposed classified road).
6. Thus, cl 104 does not elevate RMS to become "a person whose concurrence is … required by the consent authority before determining a development application". In contrast, cl 100 does elevate the chief executive officer of RMS to be a concurrence authority. It is perfectly rational and consistent with the EPA Act and the Regulation that some clauses of an environmental planning instrument will require a consent authority to consult with a person before determining a development application and other clauses will require a consent authority to obtain the concurrence of a person before determining a development application. This is the distinction clearly made in s 79B of the EPA Act.
7. It is clear that cl 104 of the ISEPP only imposes an obligation on the consent authority to consult with RMS by way of taking into consideration RMS' response to a development application. It does extreme violence to the terms of cl 104 to interpret it as imposing an obligation on the consent authority to obtain the concurrence of RMS. Indeed, such an interpretation ignores (and would elide) the distinction between the meaning of consultation and concurrence made throughout the regulatory regime. Accordingly, the Applicant's submissions pressing the Court to accept that cl 104 makes RMS a concurrence authority for the purposes of the present development application are rejected.
8. However, it is also necessary to consider the Applicant's additional contention that RMS is a concurrence authority with respect to the development application by dint of s 138 of the Roads Act. In particular, the Applicant submitted that the proposed removal of the existing driveway access between Camden Valley Way and the Land triggers the requirement for a consent (or approval in the terminology of the EPA Act) under this section which, due to sub-section (2), can only be given with the concurrence of RMS.
9. Putting to one side the question of whether RMS would be a concurrence authority as defined under the Regulation if its concurrence is required by the Roads Act (rather than the EPA Act or an environmental planning instrument), the critical issue to address is whether the proposed development does require a consent under s 138 of the Roads Act.
10. In short, contrary to the Applicant's submissions, the Court has concluded that the severing or disconnection of the connection between the existing driveway on the Land with Camden Valley Way does not require the consent of the appropriate roads authority under s 138 of the Roads Act. The proposal to carry out works on a private driveway to sever the connection of that driveway with a public or classified road does not constitute any of the actions specified in limbs (a)-(e) of s 138(1) of the Roads Act. The Applicant did not specify which limb does, on its case, operate to require such a consent. That is to say, in response to the Respondent Council's allegation that a consent is not required under s 138(1), the Applicant did not explain why a consent is required by that section. Presumably, the Applicant's contention was that limb (e) ("connect a road to a classified road") should be read broadly to include "disconnect a road to a classified road". Again, such an interpretation would contradict the clear language of the section.
11. Thus, in this case, it is not apparent that a consent under s 138 of the Roads Act is required for the proposed development and that, therefore, RMS is not elevated by that section to be a concurrence authority (or approval body) such that its request for further information enlivened cl 110 of the Regulation.
12. For all of these reasons, the Court is not satisfied that RMS' request for further information on 30 November 2015 stopped the assessment period clock until 6 May 2016 by dint of cl 110 of the Regulation.

The clock was not reset by the four alleged development application amendments

1. As outlined above, the Applicant's case is that there were four instances when the development application was amended by the lodging of new material; either in the form of varied plans, changed particulars or further reports. These four instances were said to have occurred on 24 February 2016, 15 April 2016, 28 April 2016 and, finally, on 3 May 2016. Should the Court accept that any of these described "amendments" constituted an amendment under the Regulation, then the "clock" would have been reset from the date of the amendment in question. Consequently, the Applicant's appeal proceedings against the Respondent Council's deemed refusal would be within time. If so, the Respondent Council's relevant motion that the Applicant's appeal should be dismissed as incompetent would be dismissed.
2. Clause 55 of the Regulation is clear in setting out the procedure for amending a development application. The clause has various elements that need to be dissected and carefully considered. In doing so, it should also be borne in mind that cl 55 (and Part 6 of the Regulation more broadly) is self-evidently intended to achieve certainty in the assessment process by ensuring that there is, ultimately, a "settled" application capable of being determined. I am of the view that there are at least two explicitly stated procedural requirements and one inherent procedural requirement, which operate harmoniously to achieve certainty in the development application and assessment process. The two explicitly stated requirements are: (1) the requirement that the consent authority agrees to a development application being amended or varied - cl 55(1); and (2) the requirement that the application to amend or vary contain sufficient particulars to indicate the nature of the amendments - cl 55(2).
3. The inherent procedural requirement of cl 55 is that there is certainty with respect to any material amendment or variation. It is logical that the amendment must be identifiable as a "settled" amendment: that is, a crystallised change that an applicant has adopted and now puts forward to replace that which went before. In contrast, cl 55 is not satisfied by a tentatively mooted, inchoate proposal to amend.
4. So, in that context, it was necessary for the Applicant in this case to satisfy the Court that any of the suggested amendments were, in fact, formal amendments of sufficient maturity to become settled components of a revised composite proposed development. This revised composite proposal should crystallise at an identifiable point in time when the last amendment is approved, at which time it could be described as having been "settled". This settled composite proposal is the proposal in response to which the consent authority is to assess the proposed development and determine whether or not to grant consent. It is convenient to coin the phrase "settled composite proposal" to describe the final outcome of an amendment process, as it can be taken that there was an original development application for a proposal which, if formally amended or varied, will transform into a composite proposal encapsulating elements of the original proposal together with the accepted and incorporated subsequent amendments.
5. It follows from the need to arrive at a settled composite proposal capable of being reviewed and determined by a consent authority, that the person applying for development consent must ensure that their attempts to incorporate an amendment or variation into a development application comply with the requirements of cl 55 and, thereby, ensure that any crystallised amendment becomes part of the development application before the consent authority. The terms of cl 55 work to prevent any situation of ambiguity and uncertainty. Floating hypothetical options or conceptual alternatives - or, to use a colloquial phrase, 'testing the water' - will not satisfy the cl 55 requirements of an amendment or variation. To be sure, an applicant is wholly entitled to constructively work with a consent authority towards formally amending a proposal by, for example, engaging in a productive, iterative exchange of e-mail correspondence canvassing alternatives and seeking feedback. However, such correspondence preliminary to the making of a formal amendment application cannot retrospectively morph into becoming an accepted application that satisfies the requirements of cl 55. In fact, although not material, this would potentially have the undesirable effect of strongly discouraging a consent authority from engaging in such productive informal dialogue.
6. In circumstances where the history of any disputed application process reveals one or more supposed amendments, I consider that the onus rests on the shoulders of an applicant to satisfy the Court that any amendment was in fact a crystallised amendment, a compliant amendment application was put to the consent authority, that application was accepted by the consent authority and, hence, a revised settled composite proposal came into existence for assessment and determination.
7. Returning to my dissection of cl 55, the expressed element in cl 55(1) is the requirement that any amendment or variation of a development application must have received the agreement of the consent authority. I consider that the expression of the requirement "but only with the agreement of the consent authority" demands an identifiable confirmation by the consent authority that this agreement has actually been given. Given that the decision of the consent authority in this respect has important consequences, I observe that consent authorities should consider themselves to be duty bound to communicate their agreement in a clear, identifiable manner.
8. There ought not be unnecessary disputation caused by ambiguity or vagueness. Critically, I do not accept that mere silence or inaction in response to an amendment being received ought to be deemed to constitute agreement. This is especially so if the application to amend cannot clearly be identified as a formal application to amend a development application. There needs to be an identifiable response which is focussed on the amendment. Although there is no prescription as to the mode of communication which would constitute "agreement", logic demands that it be demonstrative and unambiguous (and, therefore, should be in writing) so that there is a referable document confirming that agreement has been given. This is not to say that this agreement cannot be manifested by clear conduct of the consent authority; however, this will often be more difficult to establish and is, for policy reasons, undesirable.
9. With respect to this aspect of "clear conduct", I do not accept that informal review amongst a consent authority's staff of possible amendments being floated by an applicant to "test the water" is tantamount to being the requisite agreement sufficient to satisfy the requirement of cl 55(1). In this case, the staff of the Respondent Council set out their initial response to the development application in a letter dated 18 February 2016, in which there was an extensive list of "the issues identified/additional information required". In response, the Applicant's project manager adopted an approach of responding to the Council's concerns by providing a succession of communications, frequently via e-mail, setting out comments, explanations and possible revisions, which were of a character of communications that fits into the category of "testing the water". Council officer feedback was sought with words such as "please provide feedback at your earliest convenience". In short, at no point in time could it be said that a point of finality had been reached with mooted amendments, nor that the Respondent Council officers' responses amounted to agreement.
10. I note that my analysis of the requirement for certainty found in cl 55 accords with the judgment of Sheahan J in Lateral Estate Pty Ltd v The Council of the City of Sydney. His Honour first summarised the submissions of the council at [70]: "[a]ppeal rights can be reinstated only when the DA is validly amended. Dialogue on possible conditions of consent cannot constitute an amendment of a DA, because the amendment process requires of an applicant 'a certain level of formality' and specificity, which triggers an appropriate formal/technical response by the consent authority, namely acceptance of its lodgement, as a DA 'in its final form' (Ipoh)". Then, at [82], His Honour relevantly concluded: "I accept the Council's proposition that the statutory regime I outlined above is designed to establish 'carefully defined time limits' … and would be 'completely undermined' if 'any correspondence between an applicant and a council concerning the proposed development would arguably re-start the deemed refusal period' - either side could manipulate the timings".
11. The next express element of cl 55 is the requirement in cl 55(2) that, if an amendment or variation results in a change to the proposed development, then the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development. Obviously, the requirement is that the particulars be in writing and be sufficiently particularised to identify the changes. Although the mode of particularisation is not prescribed, obviously the objective must be to inform the reviewer of what was before and how it has changed - so, amongst many options, a comparative table is frequently adopted as a sensible approach. The logic underlying the requirement in cl 55(2) can be inferred to be that it is important that a consent authority is clear as to what amendment or variation it is considering and accepting or rejecting.
12. I interpose here to note that the next element in cl 55 is that a development application may be amended or varied at any time before the application is determined. That element is not an issue in this case.
13. Finally, pursuant to cl 55(3), in circumstances where the development application is for a development for which the concurrence of a concurrence authority is required, as referred to in s 79B of the EPA Act, or is for an integrated development, then the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body. Needless to say, in determining whether a development application amendment has been received and agreed to by the consent authority, the forwarding of an amended development application pursuant to this subclause would certainly confirm that a formal amendment has been received and is being acted upon.
14. Moreover, this sub-clause harmoniously reinforces the intention of cl 55 to provide certainty in the development application and assessment process. The consent authority has an obligation to "immediately forward" an amended application to a concurrence authority and/or approval body to ensure that all of the relevant decision-making entities are assessing the same development. If there is no rigour and formality to the process in which a consent authority accepts an amendment to a development application under the Regulation, then there is a considerable risk that the applicant, consent authority, concurrence authority and approval body all may have a different understanding of what the development application is. This would, of course, be untenable and explains why cl 55 is drafted in the way that it is.
15. In the context of the foregoing analysis, I have concluded that none of the four alleged instances of amendment to the development application meet the requirements of the regulatory regime. First, the alleged amendments did not reach the requisite degree of certainty and finality to constitute an application to amend or vary the development application. The relevant documents containing the alleged amendments did not contain crystallised amendments comprising an application to amend or vary. Rather, the relevant documents contained tentative, inchoate proposals put to the Respondent Council as part of an iterative process of working towards a formal amendment application. This finding is corroborated by the nature of the responses of the Respondent Council to the alleged amendments; none of which can fairly be read as recognising the Applicant's document as an application to amend or vary (let alone indicating the Respondent Council's agreement to any amendment).
16. Secondly, even if any of the alleged amendments were to constitute an application to amend or vary within the meaning of cl 55, the Court is not satisfied that any of the alleged amendments received the required express or implied agreement. Certainly, the Applicant could point to no express agreement to any of the identified alleged amendments. Similarly, with respect to the conduct of the Respondent Council, the Applicant did not advance any compelling case that the Respondent Council had manifested its implicit agreement by way of conduct. Ultimately, the Applicant relied most heavily on the Respondent Council's silence upon receipt of the alleged amendments. As indicated above, such a position is clearly untenable. In fact, if anything, an inference could be drawn from this that the Respondent Council did not recognise or treat any of the alleged amendments as an application to amend the development application.
17. Finally, I do not accept that any of the alleged instances of amendment satisfy the requirements of cl 55(2). There were, in no instances, a designated document annexed to the alleged amendment that provided written particulars sufficient to clearly indicate the nature of the changes. In fact, it is more likely than not that none of the alleged amendments contained written particulars, let alone written particulars of sufficient detail to clearly indicate the nature of the changes. A common example of a document that may comply with cl 55(2) would be a copy of proposed amended development plans featuring a legend at the base of the plans indicating a revision number, new date and a summation of the plan changes.
18. In order to further explicate the above overarching conclusions of the Court, I will now summarise the specific reasons why each of the alleged amendments identified by the Applicant did not constitute a valid amendment of the development application.
19. First, with respect to to the 24 February 2016 alleged amendment, although the words "amended layout" appeared in the project manager's e-mail of that date, the proposed changes included preambular words such as "it would be possible to …" foreshadowing that further options were possible. Then, with the words "please provide feedback at your earliest convenience", it is clear that a discourse was being invited, inherent in which is the suggestion that further changes would be contemplated. Finally, confirming the evolving or transitional, but not settled, state of the application, the e-mail concluded: "we are working on other comments mentioned in Council's letter and will provide the requested information soon". Critically, without adhering to the professional standard applying to the revision of plans, the legend box on the plan accompanying the 24 February 2016 communication was left blank with no indication of revision number, a changed plan date or particulars of amendments to the plan.
20. With respect to the alleged amendment of 15 April 2016, again the Applicant's project manager's communication suffers from the same deficiencies. The e-mail of that date confirms that it is providing responses to the Respondent Council officer's letter of 18 February 2016, but that further information is being obtained which "will be provided in due course" and that "C&M are running final models for a response". Again, critically, although the e-mail states that "the amended plan of subdivision is attached for Council's consideration", the particulars box is again blank with the plan being described as "original issue" (although the plan does contain an April date). Given that it is supposedly being submitted as an amended plan, no particulars are provided by way of revision identification and no description of the revisions is provided. In the context of cl 55(2) requiring written particulars sufficient to indicate the nature of the changed development, the Court does not accept that the material submitted was sufficiently settled that it was capable of being agreed to by the Respondent Council. Further, it is noted that, in the covering e-mail, rather than confirming that it is a final amendment in relation to which Council's agreement is sought, queries mooting additional options are raised, specifically a possible option to pipe under a street and extinguish a drainage easement.
21. The next alleged amendment was that of 28 April 2016. Again an e-mail forwarded further plans described as "updated subdivision plans". An offer to provide further plans showing individual lot designs was concurrently made. Again the industry standard was not met, in that every plan in the bundle retained the revision designation "00" and retained the earlier plan date despite the accompanying e-mail referring to them as "updated". The legend box on each plan was again blank, with no revision number. In the "description" column, no description was provided, there was no identification of a date of revisions and, in the "approval" column, there was no 'sign off' to indicate that the plans were finally approved. The two line accompanying e-mail provides no enlightenment as to what has changed, if anything, despite the word "updated". In short, there was no effort to comply with the particulars requirement in cl 55(2) and no request to the Council to agree to whatever the latest alleged amendment comprised.
22. Finally, with respect to the 3 May 2016 alleged amendment, the Court is of the view that the alleged amendment fails to meet the required criteria. The focus of this alleged amendment is the provision of a traffic report from the Applicant's traffic consultant Varga Traffic Planning Pty Ltd. The report was produced to RMS so as to provide additional information, but at no stage was it explained whether the report in question simply provided further explanations of the original proposal or whether it proposed or merely mooted changes. The content of advice from a traffic consultant might simply explain a proposal in greater detail or the report itself might be revised from original traffic consultant commentary without altering a proposal. The report appears to have been produced in response to various queries in the Respondent Council's original 18 February 2016 letter seeking further information. In short, the Court is not satisfied that the alleged traffic report constituted an amendment of the kind envisaged by cl 55, nor is there any demonstrative agreement by the Respondent Council to whatever amendment that report is supposedly meant to comprise.
23. For all of these reasons, the Court is not satisfied that the development application was amended in such a way as to reset the clock and render these proceedings competent.

The proceedings are incompetent

1. Thus, as the Applicant's stopping of the clock and resetting of the clock arguments have failed, the Court is not satisfied that these procedings were commenced within the prescribed time under the EPA Act and the Regulation. Accordingly, whilst the result might be harsh for the Applicant, the Court does not have jurisdiction. In these circumstances, the Court is bound to dismiss the appeal as incompetent.
2. This being said, the Court emphasises that this does not mean that the pending development application, which is still before the Respondent Council for assessment and determination, is ineffective, has no effect or is somehow invalid. In this judgment, the Court has not reached any conclusion inconsistent with the position that the Respondent Council has before it a development application that it must consider, assess and determine. Indeed, in so far as the Court makes relevant guiding (but not binding) observations below, it would appear that the Respondent Council does still have an obligation to assess and determine a development application lodged by Australian Consulting Architects Pty Ltd.

The Court should amend the Class 1 Application

1. I am of the view that it is necessary and desirable for there to be a legal entity before this Court for the purposes of these proceedings. As explained above, without a competent legal entity before this Court, a number of complications arise, not the least being the capacity of the Court to make orders with respect to a non-legal entity and the extent to which such an entity may or may not be amenable to those orders. Accordingly, I have decided to substitute the named Applicant so as to read "Australian Consulting Architects Pty Ltd ACN 130 867 613". Hence, in dismissing the proceedings as incompetent, the Court will be dismissing a Class 1 Application filed by a legal person rather than a Class 1 Application filed by a non-person.

The owner's consent issue can be cured

1. The Court accepts the Applicant's submissions that the absence of an effective owner's consent at the time the development application was lodged can be cured, there being a number of authorities cited above confirming that proposition. Contrary to the Respondent Council's submissions, it is of no significance that the former owner of the Land gave consent to a separate legal person to lodge a development application. This does not preclude Australian Consulting Architects Pty Ltd, who did lodge a development application, from obtaining the consent of the new owner of the land for its pending development application. It is true that the former owner of the land cannot now grant consent to Australian Consulting Architects Pty Ltd, however, this is irrelevant.
2. Nevertheless, as I have already indicated, it is patently clear that there are good reasons why the regulatory regime requires an applicant to obtain the consent of the owner of the land. I reiterate here my observation that it is regrettable that the Applicant and the Respondent Council both failed to properly check this requirement at an earlier point so as to avoid the need to resolve this requirement well after the initial lodgement of the development application.
3. Ultimately, although the Court is of the view that the Applicant can still establish that the new owner of the Land has given the appropriate consent to the Applicant, in circumstances where these appeal proceedings are incompetent, it is not for the Court to make any order in this respect. I should also caution that the above observations are offered as guidance to the parties, rather than the culmination of a considered decision on the issue.

The named applicant in the development application can be corrected

1. As I have foreshadowed earlier, given that these appeal proceedings are incompetent, it is not for the Court to make an order amending the named applicant in the original development application.
2. However, I do observe that the Respondent Council's assertion that the development application was made by an unknown entity is unconvincing. The Court is satisfied, on the evidence before it, that the applicant for consent is and has always been Australian Consulting Architects Pty Ltd. The only sensible inference that can be drawn from the available materials is that the development application form was deficient in that it suffered from an omission (which was repeated in many, but not all, subsequent documents). Again, I should caution that the above observations are offered as guidance to the parties rather than the culmination of a considered decision on the issue.

Costs

1. At the conclusion of the hearing on 15 August 2017, the parties indicated that it was agreed that, should the Respondent Council be successful on its motion for the appeal to be dismissed as incompetent, each party would pay its own costs. On the other hand, should the Respondent Council be unsuccessful, it was agreed that costs should follow the event.
2. Hence, given that the Respondent Council has been successful, the Court has decided not to make any order as to costs. Given the unfortunate history of these proceedings, where there were failings on the part of both parties, it would not be fair and reasonable to award costs to the Respondent Council.

Orders

1. The Court orders that: 1. The Class 1 Application in these proceedings filed on 14 October 2016 is amended to substitute the named Applicant so as to read "Australian Consulting Architects Pty Ltd ACN 130 867 613"; and 2. The proceedings are dismissed as incompetent.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2017