Duke Developments Australia 4 Pty Limited v Sutherland Shire Council

Land and Environment Court (NSW)|2021-06-18|Before: Robson J

Introduction

It is appropriate to note at the outset of this judgment that although the Applicant seeks leave to rely upon amended plans in the appeal proceedings, the practical effect, as accepted by senior counsel for the Applicant, is that leave is sought to amend the modification application which was submitted by the Applicant to Council to reflect the amended plans: Tcpt, 18 June 2021, p 2(7-10). It is trite to note that before making an order, the Court must always be satisfied it has power to make such an order.
Whether the Court has power to make the orders sought in this motion raises matters of both legal nicety and practical importance as a result of the Court of Appeal handing down judgment in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 ('Dartbrook CA') on 3 June 2021. This occurred after the present motion was filed, but prior to the hearing of the motion.
As considered further below, in Dartbrook CA, Preston CJ of LEC sitting on the appeal considered whether this Court had power under the EPA Act to make an order amending a modification application that had been made under a now repealed section of the EPA Act, and found that the Court had no such power. The two other judges sitting on the appeal (Meagher and Leeming JJA) chose not to consider the question of whether there was power to amend a modification application, as in their view it was not necessary for the determination of the appeal. All three judges concurred with the result of the appeal, which turned on another legal issue.
The Applicant's primary position was that the findings of Preston J in Dartbrook CA should not be adopted, however, if the Court was minded to find that the modification application could not be amended, the Applicant proffered alternative "approaches" which presented various procedures by which the amended plans for which leave was otherwise sought could be directly or indirectly placed before the Court in a manner that did not require leave to rely upon the amended plans.

Background

On 21 July 2020, Council granted Development Consent DA 18/1391 for "[d]emolition of existing structures, construction of a residential flat building containing 15 units, basement parking and 4 pools with strata subdivision" at 11 and 13 Tonkin Street, Cronulla (the 'Consent'). The Consent was granted subject to a number of conditions, including a deferred commencement condition requiring revised plans to be provided addressing various matters.
On 27 October 2020, the Applicant lodged Modification Application MA 20/0324 ('Modification Application') with Council, which sought to modify the Consent by consolidating single and three-bedroom apartments on levels 1 and 2 (thus reducing the total number of residential apartments in the development from 15 to 11); reconfiguring ground level balcony spaces; and expanding a roof-top terrace.
As a result of Council's deemed refusal of the Modification Application, on 18 December 2020 the Applicant commenced the appeal proceedings. On 2 March 2021, Council filed a statement of facts and contentions detailing the proposal, the site, statutory controls, procedural history, and outlining seven contentions in issue between the parties, as well as elements of the Modification Application that Council consented to.
On 8 March 2021, a conciliation conference was undertaken pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) ('Court Act'), which did not resolve the matter. Subsequently, on 12 April 2021, orders were made by the Court setting a timetable for the preparation of a joint expert report and the further conduct of the proceedings.

Evidence

In support of the motion, the Applicant reads the affidavit of Jeff Mead affirmed 28 May 2021. Mr Mead, the Applicant's consultant town planner, deposes that the Applicant prepared the amended plans with the intention of addressing contentions raised by Council in the course of the appeal proceedings. He annexes the plans for which leave to rely on is sought to his affidavit. The plans are detailed in par (1) of the orders sought in the motion, and include draft strata plans, revised landscape plans, and amended site plans (collectively, 'amended plans').
Mr Mead provides a summary of the differences between the amended plans and the plans that were submitted to Council as part of the Modification Application. For reasons noted below, and in particular the position adopted by Council in relation to the motion, the detail of these differences does not require recitation.
Mr Mead also details how the amended plans and supporting documentation address the seven contentions raised in Council's statement of facts and contentions, which are: 1. That the Modification Application is not substantially the same as the development the subject of the Consent; 2. That the amended development fails to comply with the relevant maximum floor space ratio development standard; 3. That the height of the amended development is unacceptable and inconsistent with the desired future character of the area; 4. That the amended development fails to respond to the local context and is not of the desired future character of the locality (being a contention in relation to "urban design"); 5. That the amended development is unacceptable given the requirements of the Apartment Design Guide (being a contention in relation to "apartment design and residential amenity"); 6. Matters "raised by public submissions"; and 7. That insufficient information has been provided for a proper assessment of the Modification Application.
The Applicant also tendered a bundle of documents including the Consent, the Modification Application, a statement of environmental effects accompanying the Modification Application, the orders relevant to the joint expert report referred to above, and the Court's Joint Expert Report Policy.

Position adopted by the parties on the motion

Council neither consented to, nor opposed, the motion seeking leave to rely upon the amended plans. In taking this position, Council confirmed, through Ms McCulloch, that: 1. Council does not discretely maintain concerns in relation to the presently sought amendments to the plans. That is, Council is content for the Court to consider the amended plans in its determination of the appeal proceedings; 2. Despite this, Council reserves its right to contend that, notwithstanding the amended plans, the Modification Application will result in an amended development that is not "substantially the same development" as that development for which the Consent was granted; and 3. Council is not concerned with the amended plans being made available to the town planning experts for the purposes of their joint conference and report (the timing of which was relevant to the second order sought in the motion which Council did not oppose).
The Applicant provided the Court with detailed written submissions which were supplemented orally at the hearing of the motion.
Although the Applicant made written submissions that the judgment of Preston J in Dartbrook CA should not be followed, in oral submissions Mr Leggat clarified that these were "formal" submissions ("in case at some stage the matter had to go elsewhere…") on the basis that the Applicant's contention that Dartbrook CA did not need to be dealt with when determining the motion before the Court: Tcpt, 18 June 2021, p 4(15-20). Thus, the Applicant's primary position appears to be that the resolution of the issue of whether there is power to amend a modification application would be left for the Court to consider on another occasion, on the basis that there is no contradictor and there are alternative approaches available: Tcpt, 18 June 2021, p 5(35-50); p 20(49-50); p 21(1-2).
The Applicant then submitted that if the Court was minded to consider the issue of whether there is power to amend a modification application, the Court would take the approach of acknowledging the decision of Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245 ('Jaimee'), that there is a "line of authority" consistent with Jaimee, and that there was judicial comity in applying Jaimee where it has not been put to the Court that Jaimee is "plainly wrong": Tcpt, 18 June 2021, p 22(33-41).
In this respect, the Applicant maintained that Preston J's "comments" in Dartbrook CA should not be followed for six (somewhat overlapping) reasons. First, the comments were in a "minority judgment"; second, the point was not advanced at first instance and was not fully argued in the Court of Appeal, meaning it could not be said that it had been "fairly and fully argued on both sides"; third, the comments were "inconsistent with the approach taken in the joint judgment of the majority", which made orders that left it to this Court to determine (on the remitter) whether there was such power; fourth, the comments were not required to determine the appeal before the Court of Appeal; fifth, "[f]ull argument" may (at some stage) demonstrate the soundness of "long-held precedent" (in decisions such as Jaimee) that there is power to amend a modification application; and sixth, in relation to Jaimee, judicial comity would dictate that this Court, constituted by a judge at first instance, would follow the decision from another judge unless convinced it is wrong.
Finally, the Applicant submitted that if the Court considered the correctness of Jaimee and formed the view that it is plainly wrong, and that there is no power to "amend" the Modification Application, then this should not affect a finding in favour of the Applicant in this motion on the basis of one of the "alternative approaches" that had been put forward: Tcpt, 18 June 2021, p 23(15-48). The Applicant proffered five alternative approaches by which the amended plans are able to be directly or indirectly "placed before the Court" when it is determining the appeal proceedings. These approaches were described in submissions as: first, "conditional approach"; second, "supplementary power approach"; third, "Bunnings approach"; fourth, "section 34 approach"; and fifth, "section 64 approach".
The Applicant's written submissions also provided draft orders which the Applicant suggests should be made if the Court was minded to accept any of the five approaches.

Consideration of Dartbrook CA

There was some initial attraction in the Applicant's position that the question of whether there is power to amend a modification application should be left for the Court to consider on another occasion (particularly noting, without adverse comment, that Council neither consented nor opposed the motion and did not proffer a view in relation to the correctness or otherwise of Preston J's reasons in Dartbrook CA, such that there has not been "full argument" on this issue before the Court).
However, I consider that the Court must engage with whether there is power to amend a modification application in this motion. This is because, as noted above and accepted by senior counsel for the Applicant, the very nature of the order sought in the motion means that success (that is, leave being granted to rely on the amended plans) requires a practical determination that there is power to amend a modification application. I do not consider that the submission otherwise made by the Applicant about the alternative approaches (as summarised at [22] above and dealt with further below) allows the Court to decline to consider this issue. It follows ineluctably that determining whether there is power to amend a modification application requires the Court to consider the status of Preston J's reasons in Dartbrook CA, as well as the decision of this Court in Jaimee.
As such it is appropriate to consider the circumstances giving rise to, and implications of, the judgments in Dartbrook CA.

Judgments in Dartbrook CA

Dartbrook CA involved an appeal from the judgment of Duggan J in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2020] NSWLEC 159, allowing an application by Hunter Thoroughbred Breeders Association Inc ('HTBA') to be joined as a party to Class 1 appeal proceedings pursuant to s 8.15(2) of the EPA Act. The Class 1 appeal proceedings involved an appeal by AQC Dartbrook Management Pty Ltd ('AQC Dartbrook') against the Independent Planning Commission's ('IPC's') refusal of an application to modify a development consent for an underground coal mine in the upper Hunter Valley, which had been granted in 2001 pursuant to (now repealed) Pt 3A of the EPA Act by the Minister for Urban Affairs and Planning.
HTBA brought its application for joinder after the primary parties in the Class 1 appeal proceedings had reached an agreement as to a decision to dispose of the proceedings consequent upon a conciliation conference conducted under s 34 of the Court Act, but before the Court had made a decision. In support of its application for joinder before the primary judge, HTBA contended that, in circumstances where the primary parties had reached a s 34 agreement which involved amendments to the modification application, there was no longer a contradictor to raise what HTBA contended was a jurisdictional issue, being that those amendments to the modification application meant it was so different to the modification application originally made and considered (and refused) by the IPC that they constituted a new modification application, which the Court did not have power to determine: AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2020] NSWLEC 159 at [23].
The essential questions before the Court of Appeal in Dartbrook CA included, first, whether there was a power of joinder available under s 8.15(2) of the EPA Act (or whether the joinder was capable of being supported by an alternative source of power being r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR')); and, second, if there was a power of joinder, whether the primary judge erred in joining HTBA on the basis that it would raise contentions regarding the jurisdiction of the Court to make the decision called for by the s 34 agreement.
The appeal from the primary judge was successful on the ground that a power of joinder was not available under s 8.15(2) of the EPA Act (and that r 6.24 of the UCPR could not be relied upon as an alternate source of power). However, the further question of whether there was power to amend an application to modify a development consent or a request to modify a development approval (in general terms, power to amend a modification application), was raised in the hearing before the Court of Appeal.
While conscious that Preston J expressed the view that there was no power to amend the modification application, in a joint judgment Meagher and Leeming JJA considered that, given the Court's common finding that s 8.15(2) of the EPA Act was not available to support HTBA's application for joinder and that while r 6.24 of the UCPR was available the requisite elements had not been made out, it was neither necessary nor appropriate to address the discrete question of whether there was such power when resolving the appeal: Dartbrook CA at [24], [28]. Their Honours noted, first, that the appellant preferred that the point not be decided but left to the Court below (on the basis that the Court of Appeal concluded the appeal favourably to the appellant on the s 8.15(2) ground); second, that it had not been advanced before the primary judge and therefore, was not as "fully argued" as it might have been in the Court of Appeal; and third, the primary parties are free to alter the terms of their s 34 agreement such that this jurisdictional issue does not need to be resolved. As such, their Honours did not give further consideration to the point.
However, as recorded above, Preston J, in a considered judgment, having found that s 8.15(2) was not available to support HTBA's application for joinder and that this was determinative of the appeal, gave consideration as to whether there was, in any event, a power to amend a modification application. His Honour found, for the reasons set out in Dartbrook CA at [227]-[270] that, contrary to earlier authority in this Court, there was no power to amend an application to modify a development consent. As it is this aspect of his Honour's judgment that is relevant to the present motion, some further detail is appropriate.
Preston J found that the primary judge had committed no error in holding that HTBA's contention that the Court lacked jurisdiction to allow the amendment of the application to modify the development consent sought in the agreement was "reasonably arguable": Dartbrook CA at [269]. However, his Honour came to this conclusion on the basis of a different reason to that contended by HTBA and considered by the primary judge. His Honour found that the lack of jurisdiction flows not from the extent of the amendment to the modification application proposed by the parties in the s 34 agreement (being so great an amendment as to constitute a fresh modification application - the position assumed by the parties) but rather from there being no power to allow any amendment to the modification application. His Honour gave four reasons.
First, there is no express or implied authority in the EPA Act allowing a proponent to amend its application to modify a development consent or an approval: Dartbrook CA at [228]. This is because where a development consent granted under Pt 4 of the EPA Act and an approval granted under (now repealed) Pt 3A of the EPA Act are final determinations of the applications seeking consent or approval, the entitlement to make an application merges with the determination of the application, such that there is no power to reconsider or redetermine the application: at [228].
In these circumstances, the options for changing an approved development are limited to making a fresh application or utilising the statutory modification application regime: Dartbrook CA at [229]. The entitlement to apply to modify a development consent or approval is delineated by the terms of the statutory modification application regime, where the relevant statutory provisions do not expressly confer any entitlement to amend a modification application before it is determined, but rather require withdrawal and reapplication: at [234]-[235]. This differs from cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW) ('EPA Regulation'), which Preston J characterised as a "deliberate choice": at [236]. His Honour then reviewed the statutory provisions and concluded that no entitlement could be implied, considering both the relationship between the statutory provisions relating to the making of a modification application and the power to modify a consent or approval, and the statutory interpretation task: at [237]-[238], [246].
Second, there is no express or implied power in the EPA Act for a consent authority to allow a proponent to amend a modification application prior to determining the application: Dartbrook CA at [252]. Preston J considered various dicta regarding the powers of consent authorities when determining an application (including the ability to impose conditions notwithstanding the absence of an express power). However, his Honour drew a distinction between the determination of an application (and a consent authority's powers in this determination) and actions prior to this determination. He concluded that dicta regarding determination did not support an entitlement to amend a modification application prior to determination: at [253]-[254].
Third, while the Court has "all the functions and discretions which the person or body whose decision is subject of the appeal had in respect of the matter the subject of the appeal" when hearing the appeal against the determination of a modification application, where neither the applicant nor the consent authority has the power to allow an amendment to the modification application there is no relevant function or discretion of the consent authority that the Court can exercise: s 39(2) of the Court Act. Again, this differs from an application to amend a development consent, where cl 55 of the EPA Regulation can be utilised by the Court.
Fourth, there is no power under s 64 of the Civil Procedure Act 2005 (NSW) ('CP Act') nor Pt 19 of the UCPR to amend or to allow the amendment of the modification application, because the modification application falls outside the scope of the documents to which these provisions apply: Dartbrook CA at [260]. In this respect, Preston J concluded that the modification application is not a "document in the proceedings" (in relation to s 64 of the CP Act) because it was created prior to the proceedings and not for the purpose of the proceedings: at [261]-[262]. Further, the amendments authorised by Pt 19 of the UCPR do not apply to applications for development consent or modification applications which are the "foundation for the proceedings", as they are directed at the amendment of statements of claim and adding and removing parties from the proceedings.
For the above reasons (collectively 'Preston J's reasons'), his Honour considered that the Court had no power to allow AQC Dartbrook to amend its modification application, and as such the decision proposed in the s 34 agreement (with its term amending the modification application) was not a decision that the Court could have made in the proper exercise of its functions: at [266]-[267].
For completeness (and relevant to matters considered later in this judgment), his Honour's findings did not interfere with the power to condition the approval of a modification application (which his Honour found is implied in the case of the power under ss 4.55 and 4.56 of the EPA Act): Dartbrook CA at [276]. In the s 34 agreement, in addition to agreeing to amend the modification application, the parties agreed on conditions of the approval of the modification application, which effectively implemented the amendment to the modification application. His Honour found that, on their face, these conditions were within the scope of the power to condition an approval of an application to modify a development consent: at [277]. This aspect of Preston J's judgment is considered further below.

Preston J's reasons

I firstly turn to the Applicant's six submissions (noted at [21] above) as to why Preston J's reasons regarding the power to amend a modification application in Dartbrook CA should not be followed.
Although there was some debate as to what comprises, technically, a "minority judgment", it is sufficient to note that the question of the power to amend a modification application was not determinative in the Dartbrook CA proceedings and was not dealt with in the joint judgment, for the reasons made clear by their Honours and summarised at [31] above. I accept, as I must, that the determinative finding in the joint judgment (being consistent with and adopting the reasoning in the determinative finding in Preston J's judgment) means Preston J's reasons relating to the power to modify are not ratio decidendi.
Nonetheless, Preston J put forward a considered and, in my view for the reasons below, persuasive opinion on important matters of practice and procedure for planning law in this State. Preston J's reasons provide a detailed consideration of the relevant provisions in legislation; the manner in which earlier authorities have dealt with these provisions; and the history of those provisions, as well as a reasoned reconsideration of Jaimee. While accepting that the discrete question regarding the power to amend a modification application may not have been "fully argued", I do not consider that the lack of (adversarial) argument renders the analysis, and conclusion reached, unpersuasive. Similarly, to the extent that the Applicant submits that the reasoning was "inconsistent" with the approach taken in the joint judgment in Dartbrook CA, I take this into account but do not consider it to be determinative of how the reasoning should be treated, especially in circumstances where the joint judgment declined, for reasons stated, to consider the issue rather than providing alternative reasoning.
I have considered whether Preston J's reasons amount to "seriously considered dicta". There has been significant judicial and academic commentary in relation to whether, in addition to the binding effect of precedent in relation to the ratio decidendi of a case, other pronouncements in the course of a judgment which, while not essential to the decision, represent "seriously considered dicta", should also have binding effect (particularly since Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 ('Farah Constructions')). There is, so far as I am aware, no statement to the effect that a judge at first instance is bound by the "seriously considered dicta" of the Court of Appeal in the same way that all lower courts are bound by such dicta of the High Court: Farah Constructions at [134], [158]; R v Obeid (No 2) [2015] NSWSC 1380 at [43]. As a result, it is clear Preston J's reasons are not binding on my consideration of this motion.
Nevertheless, given the inconsistency between Preston J's reasons and the earlier decision of this Court in Jaimee, which Preston J considered to be wrongly decided, while conscious of the requirements of judicial comity, faced with a recently stated reconsideration of whether there is power to amend a modification application in the Court of Appeal (albeit, as here, without full argument), I consider that I am obliged to engage with the issue and form my own view.
As such, I find that the present motion requires consideration of the correctness of the conclusions reached in Jaimee more than a decade ago. I am cognisant that my consideration may later suffer commentary that the matter was either not fully argued before me and/or was determined absent a proper contradictor and, further, that the hearing of a notice of motion to rely upon amended plans heard by a duty judge, where one party neither consents nor opposes, may not amount to an appropriate vehicle for the consideration of the issue.

Consideration of Jaimee

In the circumstances, and without discrete assistance from the parties, I have considered the reasoning in the judgment of Jaimee and the authorities considered therein, including: Independent Holdings Ltd v City of Adelaide Planning Commission (1994) 63 SASR 318; (1994) 85 LGERA 339 ('Independent Holdings'); Mirvac Projects Pty Ltd v Ku-Ring-Gai Council [2007] NSWLEC 540; (2007) 159 LGERA 151 ('Mirvac Projects'); North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 ('Michael Standley'); 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 ('1643 Pittwater Road'); Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56 ('Johns v ASC'). These authorities were also considered by Preston J in Dartbrook CA.
In Jaimee, the question of whether a consent authority has power to accept an amendment to an application to modify a development consent, granted for alterations and additions to a warehouse, was squarely raised. In those proceedings, the original application for modification lodged by Jaimee Pty Ltd ('Jaimee') with the Council of the City of Sydney sought, inter alia, the amendment of one condition and the deletion of two others. After the council acceded to the deletion of one condition but refused the remainder of the modification application, Jaimee appealed to this Court. Once proceedings had been instituted, Jaimee sought leave to amend its modification application, which was opposed by the council. This gave rise to the issue of whether there was power to amend a modification application under the (then) relevant provisions of the EPA Act.
The Court heard a submission that there was no statutory provision that expressly or impliedly authorised Jaimee to make, or the council to accept, an amendment to an application for modification of a development consent: Jaimee at [20]. This was contrasted with the availability of cl 55 of the EPA Regulation (which had at that time been the subject of significant judicial consideration) and had been described as "beneficial and facultative", in an application of the expressio unius principle of statutory construction: at [21]-[23].
Craig J identified the task before him as "to construe the legislative scheme in order to determine whether such a consequence is intended, informed by the context, scope and purpose of the legislation", where "such consequence" was the council's contention that in circumstances where the EPA Act expressly provides for the amendment of an application for development consent, it was not intended that there be a similar power of amendment for a modification application: Jaimee at [26].
His Honour began the statutory interpretation task with consideration of the legislative context. His Honour noted that where statutory provisions required the notification of a modification application, and the consideration of submissions received as a result of the notification process, an inability for the applicant to respond with an amendment to the modification application did not appear consistent with the statutory scheme. Craig J identified that "extraordinary administrative rigidity" would result if an error or omission was discovered in a modification application that was easily rectifiable, but could not be rectified by amendment, necessitating the lodgement of an entirely new application: Jaimee at [28]. His Honour found that unless the interpretation of the EPA Act (and any regulation) mandated such a result, it should not be interpreted in this manner. Having made this observation on the practical implications in the context of the statutory scheme, his Honour then continued with the task of interpretation.
In a careful judgment, Craig J considered various authorities where an absence of a statutory provision authorising an amendment had been considered including, in particular, commentary in Independent Holdings at 346, where King CJ stated that it was "manifestly convenient that [a power to amend] should exist". Craig J considered this commentary "apposite" to the matter then before the Court: Jaimee at [30].
His Honour also considered the comments of Talbot J, who found that an application for a modification of a development consent could be amended in Mirvac Projects, stating "a power to apply must ordinarily include a power to amend": at [29]. Craig J considered that Talbot J's decision in Mirvac Projects was supported by analogy by the comments of Mason P in Michael Standley at 475-476, dealing with the power to approve an application to modify a development consent for a mixed-use multistorey building on a "conditional" basis (where at that time decisions of this Court had held that there was no such power).
As Craig J identified, Mason P's comments were later taken up by McClellan CJ of LEC in 1643 Pittwater Road, who considered and found that an application for a modification (of dwellings) could be the subject of an approval subject to conditions, notwithstanding the absence of any specific power in the EPA Act or the EPA Regulation to condition this kind of approval.
Based upon these considerations, and further relying upon the comments of Brennan J in Johns v ASC at 428-429, to the effect that the general position is that an authority conferred by a statute can be construed as authorising "everything which can fairly be regarded as incidental to or consequential upon the authority itself", Craig J concluded that "the power to determine the application extends to allowing that application to be amended prior to determination": Jaimee at [38]. As a result, it was open to the proponent to amend the application for modification that it had lodged with the council and, having determined that there was power residing with the council to allow an amendment, s 39(2) also enabled the Court to so do: at [40] and [44].
Having undertaken this consideration of Jaimee, it is clear that an inconsistency arises between this judgment and Preston J's reasons set out at [227]-[270] in Dartbrook CA and for the reasons that follow, and again noting that the matter was not fully argued before me, I find the conclusion of Preston J that there is no power residing with the Court to amend a modification application for the reasons stated at [227]-[270] of Dartbrook CA, to be persuasive and to be preferred to the consideration and conclusions in Jaimee, which, to the extent necessary, I find to be wrongly decided.
I start with the primary position that there simply is no express power to amend a modification application in the EPA Act and EPA Regulation. The question then becomes whether the power to amend a modification application can be implied from the EPA Act and EPA Regulation through a process of statutory interpretation.
In contrast, there is an express limited power (being "limited" in the sense that the power is constrained by the requirement for the agreement of the consent authority to be obtained) to amend a development application pursuant to cl 55 of the EPA Regulation. There is undoubtedly a contrast between the express provision for an amendment of a development application and the absence of such a provision (on one view deliberately) in relation to a modification application.
There are detailed provisions in the EPA Regulation in relation to the form and process for an applicant to make an application to modify a development consent: cll 115 to 122 of the EPA Regulation. This includes provisions that specify what information about a proposed modification must be provided, and provisions that provide for public notification of a proposed modification. In these circumstances, the omission of a provision providing for a modification application to be amended is persuasive, and in my view militates against a finding that such a power should be implied.
Turning to earlier authorities, and particularly those considered in Jaimee, I do not consider that reliance upon Independent Holdings is persuasive as the comments of King CJ were based on an analysis of the applicable South Australian legislation, and in the context of a statutory scheme that did not contain a discrete power to amend a development application, but had previously contained a broader power allowing amendment without the agreement of the consent authority, which had been repealed: Independent Holdings at 346. Further, that case was dealing with whether a power should be implied to permit an amendment of plans which formed the basis of a primary development application in the context of judicial review proceedings in which it was alleged, inter alia, that the development approved was "substantially and fundamentally different" to that lodged by the applicant, and where the amendments had been made to the development, first, as a result of community objections to the development, and, second, as a result of a conference between the applicant and the consent authority: at 346-7.
In Mirvac Projects, Talbot J determined that an application to modify a development consent could be amended: at [28]-[29]. This was on the basis that "a power to apply must ordinarily include a power to amend", although as later identified by Craig J in Jaimee at [32], no authority was cited for this proposition. In these circumstances, this case does not progress my consideration of the issue.
Having considered the dicta of Mason P in Michael Standley noted above (and the subsequent consideration of McClellan J in 1643 Pittwater Road), I do not consider that the power to determine either a development consent or an approval of a modification application subject to conditions provides a sound basis to imply the power to amend an application to modify a development consent prior to the determination of the application (notwithstanding that in practice in certain circumstances the imposition of conditions during the determination of the application may provide for alterations to developments or modifications - considered in detail at [71]-[77] below). In this respect, I consider the power to determine an application subject to conditions to hinge from the exercise of the discretionary power to determine the application, as adverted to by Mason P in Michael Standley at 476. In contrast, amending a modification application, or an application for development consent, is a separate action from the determination of the application. As such, the discretionary power to determine an application would not extend to support implying a power to amend a modification application, or an application for development consent.
A similar comment can be made in relation to reliance on Johns v ASC. It is uncontroversial that an authority conferred by a statute extends to those things incidental to or consequential upon that authority: at 428-429. I do not cavil with the proposition that approving a modification application subject to conditions can be considered "incidental to or consequential upon" the authority to determine a modification application. However, I do not consider that "incidental to or consequential upon" extends to supporting a consent authority allowing an action that is separate to the determination of an application, being an amendment to a modification application prior to determination. In this regard, I accept and prefer the view of Preston J in Dartbrook CA at [254] where his Honour states "[t]he statements of principle that a power to determine an application for some form of approval includes the power to determine the application on conditions say nothing about whether an applicant is or is not entitled to amend the application prior to the consent authority determining the application".
In summary, there is no express provision allowing a consent authority to amend an application to modify a development consent or approval, in circumstances where the parallel situation in relation to a development consent is specifically provided for in cl 55 of the EPA Regulation. Having considered previous authorities, I further consider that such a power cannot be implied from the statutory provision providing for a consent authority to determine a modification application. I consider this is so even accepting that the determination itself can be made subject to conditions. As noted above, my reasoning reflects and adopts much of the reasoning and findings of Preston J in Dartbrook CA in particular the reasons at [227]-[270], which I have noted at [32]-[39] above.
The result of my consideration is that if the Applicant wishes to rely upon the amended plans, such that the Court considers the amended plans in its assessment of the application to modify the Consent, the Applicant, subject to matters considered below, needs to withdraw the Modification Application and submit a new application.
As I indicated during the hearing of the motion, I am conscious of the likely (if not obvious and significant) inconvenience that arises from a finding that there is no power to amend an application for modification of a development consent. Indeed, it appears that the likelihood of such a consequence was taken into account in a number of the authorities referred to above (see for example, Craig J at [28] in Jaimee; and, to a lesser extent, King CJ at 346 in Independent Holdings). However, while I accept that there is a principle of construction whereby a court leans against adopting a construction that produces irrational or grossly impractical consequences, there is no principle of construction that the legislature must have intended a construction that would be the simplest or most convenient to apply in practice.

The Applicant's five alternative approaches

The five alternative approaches identified by the Applicant in submissions were not necessarily directed at, or responsive to, the motion which seeks an order that leave be granted to rely on the amended plans. In this respect, only the "supplementary power approach" was submitted on the basis that there may be another statutory provision available to support the power of a consent authority, and thus the Court, to amend a modification application. Rather, the alternative approaches were couched by the Applicant as methods by which the amended plans "could" be placed before the Court, such that they would be considered by the Court in its assessment of the Modification Application in the appeal proceedings.
Council expressed no view, and made so submissions in relation to the alternative approaches.
While my findings above are mostly determinative of the motion (given my findings about the "supplementary power approach" below) and mindful that the Court should not be involved in providing advisory judgments or opinions, given the detailed submissions made, and to the extent that my findings above may be found to be wrong, I will shortly consider the further submissions made by the Applicant.
As will be clear, my consideration of Dartbrook CA (and Jaimee) influences my response to a number of the approaches raised by the Applicant and considered below.

Conditional approach

The Applicant submitted that the practical effect of an amendment to the Modification Application could, as an alternative to amending the plans, be achieved through imposing a condition on the approval of the Modification Application. This approach is premised on the proposition that the Court, exercising the powers of the consent authority, can approve a modification application subject to conditions, in circumstances where the effect of a condition may be to modify the details of the development. Subject to my comments to follow, I see no prima facie difficulty with such an approach in principle.
As noted above, in 1643 Pittwater Road, McClellan J considered the regime for modification of development consents, in the context of an application to modify a development consent through the deletion of an existing condition of a development consent. His Honour held that where the Court was evaluating a modification application, the Court could approve a modification application by deleting an existing condition but also by imposing a different condition.
Further, the comments of Preston J in Dartbrook CA at [277], [321]-[322] confirm that there was no error of law in the view of the primary judge in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2020] NSWLEC 159 at [51] that rather than seeking to amend a modification application to change the details of the development, the same outcome could have been achieved through the imposition of conditions on the approval of the modification application.
The obvious caution is that it is for the commissioner or judge hearing the application for modification of the development consent to decide first, whether the modification application should be approved; and second, that a condition with the effect of amending the development should (and in some circumstances could) be imposed as part of that approval.
Given the above, in the context of the appeal proceedings, the Applicant indicated an intention to place the amended plans before the town planning experts to facilitate the Court considering the amended plans and considering whether it is appropriate to impose a condition on the approval of the Modification Application that the development be carried out in accordance with the amended plans. As noted above, Council expressed no concern with this approach and the Court was informed that the amended plans had, in fact, been provided to the experts.
While this approach may appear to contain an element of contrivance, noting that the experts have duties under the "Expert witness code of conduct" in Sch 7 of the UCPR and the Court's Joint Expert Report Policy, and on the assumption that the consideration of amended plans properly forms part of the process of dialogue and consideration undertaken by the experts, the consideration of the amended plans by the experts and the possible presentation of those plans to the Court may be an unremarkable consequence of the expert witness process.
In the circumstances, I consider that it is ultimately a matter for the Court in determining the appeal proceedings whether it will approve the Modification Application subject to conditions (possibly including a condition relating to the amended plans) and whether the ensuing development is one that can be approved.

Supplementary power approach

The Applicant submitted that as the appeal proceedings concern a modification application to a development consent that was granted pursuant to Pt 4 of the EPA Act, the issues raised in the motion can be distinguished from the circumstances considered by the Court of Appeal in Dartbrook CA, which related to an approval under (now repealed) Pt 3A of the EPA Act. Central to the Applicant's submission was that where a local council is the consent authority, it has the benefit of another source of power being s 23 of the Local Government Act 1993 (NSW) ('LG Act') which was not available to the IPC nor considered in Preston J's reasons in Dartbrook CA and, in circumstances where the power is available to a local council as consent authority, such power is then available to the Court pursuant to s 39(2) of the Court Act.
The Applicant submitted that s 23 of the LG Act allowed a proponent to amend a modification application, as something "supplemental or incidental" to Council exercising its power to determine a modification application under the EPA Act: s 4.55 of the EPA Act. In support of this submission, the Applicant referenced "high authority" for the proposition that these terms in the LG Act are words of "of the widest import": The City of Sydney v Streetscape Projects (Australia) Pty Limited [2011] NSWSC 1214; (2011) 94 IPR 35 at [200]; Parramatta City Council v R&R Fazzolari Pty Ltd; Parramatta City Council v Mac's Pty Ltd [2008] NSWCA 132; (2008) 162 LGERA 1 at [133]-[135].
Section 23 of the LG Act provides that "[a] council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions", where a council's functions are the functions conferred, or imposed, by or under the LG Act or "by or under any other Act or law": ss 21 and 22 of the LG Act.
The Applicant also directed the Court to Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10; (2015) 208 LGERA 1 at [66] ('Zhang'), as an example of how s 23 of the LG Act has been utilised. In Zhang, the Court referred to s 23 of the LG Act in support of its conclusion that a council had the power to institute proceedings for an offence under the EPA Act. I note s 23 was utilised in concert with a number of other statutory provisions - in this respect, Preston J noted at [66]: "… The power of a council to institute proceedings for an offence under any Act is in the Local Government Act, being conferred either directly by ss 21, 684 and 687 of the Local Government Act or indirectly because the power is supplemental or incidental to, or consequential on, the exercise of the functions conferred on a council by or under the Local Government Act or any other Act including the EPA Act (see s 23 of the Local Government Act) or because it is necessary for, or incidental to, the exercise of a council's functions under the Local Government Act or any other Act including the EPA Act (s 50(1)(e) of the Interpretation Act, which power is applied by s 22 of the Local Government Act)."
It is clear that the context in which leave to rely on the amended plans is being sought in this motion differs from the context that was considered by Preston J in Dartbrook CA. In this respect, both the statutory regime and the original consent authority differ in this motion, when compared to Dartbrook CA. However, it does not necessarily follow that these differences are determinative in respect of the power to amend a modification application.
I note for completeness that Preston J considered both the amendment of an application to modify a development consent (in the case of ss 4.55 and 4.56 of the EPA Act), and a request to modify an approval (in the case of the former s 75W of the EPA Act), and reached his conclusions without differentiating between these statutory pathways. Having considered Preston J's reasons (summarised above at [32]-[39]), I am satisfied that the difference in the statutory regime applicable does not decrease the force of the Preston J's reasons.
It is true that the power available under s 23 of the LG Act was not discretely raised and considered in Dartbrook CA. I accept the submissions of the Applicant in relation to the general approach to s 23 of the LG Act, that is, that the provision has a wide application. It is clear from the broad terms of "all such things as are supplemental or incidental to, or consequential on", that the provision is intended to be flexible and facultative. However, the use of s 23 of the LG Act remains contingent on, and regulated by, the functions of Council.
The function which Council is exercising in the current circumstances is the determination of a modification application under s 4.55 of the EPA Act. While accepting that s 23 of the LG Act applies to this function of Council, I do not consider that it provides Council with a power to allow the Applicant to amend its Modification Application. While I accept that pursuant to s 23 of the LG Act, Council has incidental powers in relation to the determination of a modification application, I do not consider that these powers extend to entitling the Applicant to take discrete action prior to the determination of the Modification Application and apply to amend the Modification Application: cf. Dartbrook CA at [254]. This echoes my reasoning set out at [63] above.

Bunnings approach

Relying on commentary in Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28; (2019) 236 LGERA 35 ('Bunnings'), the Applicant raised the prospect of utilising an "interim judgment" to bring the amended plans into the appeal proceedings. The Applicant submitted that the Court hearing the appeal proceedings could give an interim judgment indicating that it was minded to grant the application for modification of a development consent on the basis of conditions which amend the details of the development (with the effect that the modification application is amended) and, in these circumstances, the Court could require the parties to provide draft conditions for the approval, and amended documentation, to effect to the Court's interim judgment.
In support of this approach, the Applicant referred to the following commentary of Preston J in Bunnings at [206]: "The Court does not need to determine the application the subject of the appeal in these ways in only one judgment. The Court can give an interim judgment indicating that the Court is minded to determine the development application in these ways and require the parties to provide amended documentation and draft conditions of consent to give effect to the Court's interim judgment. The Court can then determine the development application the subject of the appeal as indicated in the interim judgment and finally dispose of the appeal. This approach is within power, retaining throughout the focus on the development for which consent is sought in the development application that is the subject of the appeal…"
As I understand it, the approach proposed by the Applicant would be practically effected by - an interim judgment of the Court, the receipt of the amended plans and draft conditions by the Court, and then the determination to grant the Modification Application subject to conditions referring to the amended plans.
This approach does not directly engage with the motion before the Court, and, despite the submissions of the Applicant and its suggested "orders", there is no order the Court can make in response to the motion that provides for the process envisaged by the Applicant to occur. Despite this, I note the following.
In Bunnings, Preston J was considering, in an appeal from a decision of a commissioner, whether the conduct of a commissioner in giving an "initial" judgment allowing a proponent to amend an application for development consent, and then subsequently granting consent to the application in a further judgment, was outside power of the Court to "determine the development application the subject of the appeal and to hear and dispose of the appeal". Preston J dismissed this ground of the appeal on the basis that the commissioner had jurisdiction to give the initial and the further judgment, where the initial judgment was "not a failure to exercise the original jurisdiction to determine the development application, but rather was in furtherance of the exercise of that jurisdiction": at [173]. Despite making this finding, his Honour also considered the arguments raised by the applicant council in the proceedings regarding use of the so called "amber light approach": at [174]-[176].
It was in the context of discussing the "amber light approach" to granting development consent that his Honour made the comments extracted above. In expressing a number of concerns about the amber light approach, his Honour differentiated between first, the Court evaluating the development for which consent was sought by reference to an amended development for which consent had not been sought (which is impermissible); and second, the determination of an application for development consent subject to conditions which modify the details of the development (which is permissible).
His Honour made it clear that where the Court's jurisdiction to determine an application for development consent does not restrict the Court to one judgment, the Court can utilise an interim judgment to require material to facilitate the determination of an application for development consent subject to conditions. His Honour found that this approach retained the "focus on the development for which consent is sought in the development application", thus avoiding the pitfalls of the amber light approach: at [206].
Preston J's comments were made in the context of the determination of an application for development consent made by Bunnings Properties Pty Ltd ('Bunnings'), rather than the context being considered in these proceedings, being a modification application. However, the Applicant submits that they apply with equal force to an application to modify a development consent.
I again note that there are clear differences in the statutory regime applicable to the determination of an application for development consent and an application to modify a development consent, not least the issue being considered in this motion, being whether an amendment to the Modification Application can be approved. Relevantly, in the interim judgment, the commissioner had indicated he would consider an application to amend Bunnings' development application, and Bunnings applied to amend its application under cl 55 of the EPA Regulation: at [169]. It is in this context that Preston J made the comment that the Court can "require" the parties to provide amended documentation.
Therefore, I accept that, in principle, the reasoning of Preston J in Bunnings in relation to the exercise of jurisdiction under ss 4.16 and 8.7 of the EPA Act when determining an application for development consent would appear to apply with similar force to ss 4.55 and 8.9 of the EPA Act in relation to an application to modify a development consent, such that an interim judgment can be delivered in furtherance of the exercise of that jurisdiction. However, I do not accept the contention that this means the Court can "require" the parties to provide amended documentation in the context of determining a modification application. Rather, I consider that his Honour's comment directly reflected the context of determining a development consent (and the availability of cl 55 of the EPA Regulation). In the context of determining a modification application there is no equivalent provision. In this respect, there is no mechanism for the parties to seek to rely on the amended plans prior to, or as a result of, the making of an interim judgment.

Section 34 approach

The Applicant submitted that it was open to the parties to seek a further conciliation conference pursuant to s 34 of the Court Act (where the initial conciliation conference in the proceedings was terminated on 8 March 2021) and at this conference a new agreement could be reached about the terms of a decision that disposed of the proceedings by reference to the amended plans.
The Applicant referred to the comments of Meagher and Leeming JJA in Dartbrook CA at [27]-[28] where their Honours noted that the parties to those proceedings were "free to alter the terms of their agreement if they so choose" where the "legislative purpose of s 34 of the Court Act is, where possible, to avoid the need for litigation", particularly in light of the arguments which were presented in the proceedings the subject of their Honours' judgment. The Applicant submitted that these comments "confirmed" the ability of the Dartbrook CA parties to come to a new agreement which "may well involve an alteration to the development sought in the modification request".
The Applicant accepted that it fell to the judge or commissioner hearing the appeal proceedings to be satisfied that any agreement between the parties is a decision the Court could have made in the proper exercise of its functions: s 34(3) of the Court Act.
In oral submissions the Applicant properly accepted the limitations of this mechanism, being that the requirement in s 34(3)(a) of the Court Act, that the terms of the decision agreed between the parties must "dispose of the proceedings", creates an inflexibility and confines the use of mechanism. Put simply, the agreement must result in a decision which is a final determination of the proceedings (and, relevantly, be a decision that the Court could make in the proper exercise of its functions). One consequence of this inflexibility, in the context of these proceedings, is that Council needs to agree to the final determination of the proceedings through a decision to approve the Modification Application subject to a condition requiring the amended plans.
I consider that s 34 of the Court Act cannot be used to facilitate an agreement that the amended plans should be utilised for the purposes of the ongoing conduct of the appeal proceedings. This was not the import of the reasons of Meagher and Leeming JJA in Dartbrook CA. In any event, given the evidence before the Court as to the position of the parties in relation to the Modification Application, this approach can be dealt with shortly because the Applicant and the Council do not appear to be in a position where they will come to an agreement as to the terms of a final decision.

Section 64 approach

The Applicant submitted that the Court has power to amend an application to modify a development consent or approval by utilising s 64 of the CP Act. Section 64 relevantly provides: (1) At any stage of proceedings, the court may order - (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. …
The Applicant submitted that the phrase "document in the proceedings", while undefined in the CP Act, should be construed "so as to provide the most complete remedy of the situation with which it is intended to deal". The Applicant suggested that as a result, the Court's power to amend pursuant to s 64 of the CP Act would extend to documents which are the basis of, and subject to, the relevant proceedings, especially where this would have the effect of determining the real issues in the proceedings. The Applicant submitted that it was clear that s 64 provides for the amendment of the Class 1 application and additionally that the Modification Application can also be amended.
The Applicant relied on the reference in s 64 to s 58 of the CP Act (which is drafted in terms of "a document" from which the Applicant interpolates "any document") and the requirement to act in accordance with the dictates of justice, and that s 64 of the CP Act is beneficial and facultative. The Applicant submitted that this approach has regard to the dictates of justice.
In oral submissions Mr Leggat clarified that the Applicant was proposing to amend the Class 1 application to refer to the amended plans and in this respect the Applicant did not seek to engage with the comments of Preston J in Dartbrook CA in relation to whether the Modification Application constituted a "document in proceedings": Tcpt, 18 June 2021, p 19(30-50). Rather, in circumstances where it is uncontentious that the Class 1 application is a "document in proceedings", the Applicant proposed that the Court grant leave to amend the Class 1 application in this motion such that the details of the Application refer to the amended plans. In passing, I note that this is not an order sought in the motion before the Court which itself would otherwise be determinative. Despite this, I note as follows.
Practically, the amendment to the Class 1 Application now sought by the Applicant (as set out in the proposed orders in the Applicant's submissions) comprises an amendment of the present wording of the "details of application" section in the Class 1 Application as follows: "Appeal against the refusal of Modification Application No. MA20/0324 submitted to Sutherland Shire Council on 27 October 2020 to modify the subject of development consent 18/13914 in accordance with the plans set out in Annexures A, B and C to the affidavit of Jeff Mead affirmed 28 May 2021 changes to unit layouts on levels one and 2 to consolidate units and reduce total number of units to 11, reconfigure a ground-level balcony spaces, and expanding and embellishing the rooftop terrace associated with apartment 601 at Lots 1 - 6 in SP 1008 and Lots 1-10 in SP 294, known as (Nos. 11-13) Tonkin Street, Cronulla, NSW 2230 (as described in the accompanying Statement of Environmental Effects)."
While I accept that it is trite that the Class 1 application is a document in proceedings, I consider that the order sought by the Applicant (making the amendment set out above) infringes on the power of the Court to determine a modification application on appeal pursuant to s 8.9 of the EPA Act. Put simply, following the determination of an application for the modification of a development consent by a consent authority, the applicant can appeal to the Court against that determination. It is the determination of the application to modify the development consent that founds the right to appeal: Dartbrook CA at [240]. The effect of the amendment sought by the Applicant is that the appeal is no longer against the determination of the Modification Application by Council, but rather a version of the Modification Application amended by reference to the amended plans which was not considered by Council.
In this respect, the Court has no power to consider a development that is not the subject of a development application, or to determine a development application that is not the subject of an appeal (absent an application for amendment being made): Bunnings at [151], [202]. This same principle applies in relation to a modification application where, as set out in my findings above, no application for amendment can be made.

Conclusion

For the reasons above, the notice of motion, subject to the non-contentious change to earlier directions, should be dismissed.

Orders

The orders of the Court are: 1. Order (2) of the Short Minutes of Order dated 12 April 2021 be varied so that the joint expert report of the town planners, Mr Jeff Mead and Mr Damon Kenny, be filed on or before 9 July 2021. 2. The Notice of Motion filed 1 June 2021 is otherwise dismissed.

Amendments 05 July 2021 - Paragraph [62] correction of typographical error "McClellan J". 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: 05 July 2021

Environmental Planning and Assessment Regulation 2000(NSW)

Local Government Act 1993(NSW)ss 21, 22, 23

(2007) 159 LGERA 151

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