Scarf v Shoalhaven City Council - [2021] NSWLEC 128 - NSWLEC 2021 case summary — Zoe

NSWNSWLEC

Scarf v Shoalhaven City Council

[2021] NSWLEC 128

Land and Environment Court (NSW)|2021-11-10|Before: Pain J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-11-10

Before

Pain J

Catchwords

[2007] NSWLEC 259 Ireland v Cessnock City Council (1999) 103 LGERA 285
[1999] NSWLEC 153 Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300
[2021] NSWCA 177 Maxwell v Murphy (1957) 96 CLR 261
[1957] HCA 7 McDougall v Warringah Shire Council (1993) 30 NSWLR 258 Taylor v Public Service Board (1976) 137 CLR 208

Source

Original judgment source is linked above.

Catchwords

[2007] NSWLEC 259 Ireland v Cessnock City Council (1999) 103 LGERA 285[1999] NSWLEC 153 Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300[2021] NSWCA 177 Maxwell v Murphy (1957) 96 CLR 261[1957] HCA 7 McDougall v Warringah Shire Council (1993) 30 NSWLR 258 Taylor v Public Service Board (1976) 137 CLR 208

Judgment (22 paragraphs)

[1]

Solicitors: Hall & Wilcox (Applicant) BAL Lawyers (Respondent) File Number(s): 2021/199188, 2021/199190

[2]

Judgment

The Applicant has commenced two related merits appeals for a property in Barrengarry (the property). Matter number 2021/199188 is an appeal made pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against Shoalhaven City Council's (the Council) determination to refuse modification application DS20/1397 to modify a development consent (DA17/1157) for an Animal Boarding and Training Establishment (Equine Education Centre) and the temporary use of a building as a Function Centre (Modification Appeal).

[4]

Notices of Motion

The notices of motion dated 1 November 2021 seek various orders, most of which are consequential if the first order is made. The substantive order sought in the Modification Appeal is as follows: 1 … an Order that the Court exercising the discretion of the Respondent agrees that the Modification Application, being the application numbered DS20/1397, may be amended or varied by the Applicant in accordance with the documents listed in Annexure "A". … ANNEXURE A 1. Schedule of Amendments; 2. Owner's Consent dated 18 March 2019; 3. Site Plan prepared by Tadhg O Foghlu dated October 2021; 4. Survey Plan prepared by Allen Price & Scarratts Pty Ltd dated 7 October 2021; 5. Landscape Plan prepared by Realm Studios dated 21 October 2021; 6. Proposed Civil Works prepared by Westlake Punnett dated 19 October 2021 a. Drawing 20568-C01 - Notes - Revision B b. Drawing 20568-C-2 - Stormwater & Car Parking Arrangement Plan - Revision B; c. Drawing 20568-C03 - Stormwater Management Details; d. Drawing 20568-C04 - Soil & Water Management Details; 7. Traffic, Access & Parking Arrangement Plan prepared by Westlake Punnett dated 1 September 2021 - Revision A; a. Drawing 20568-C06 - Traffic, Access & Parking Arrangement Plan Comparison dated 18 October 2021 8. Plan of Management prepared by Stantec dated 29 October 2021; 9. Comparison Plans prepared by Tadhg O Foghlu dated October 2021 a. Drawing 21.027.01 - Comparative Plans - Building Footprints; b. Drawing 21.027.02 - Comparative Plans - Overall Gross Floor Area; c. Drawing 21.027.03 - Elemental Comparative Plans; d. Drawing 21.027.04 - Comparative Elevations and Section; e. Drawing 21.027.05 - Comparative Elevations; f. Drawing 21.027.06 - Submitted Section 4.55 Plan; g. Drawing 21.027.07 - Proposed West & East Elevations; h. Drawing 21.027.08 - Proposed North & South Elevations; i. Drawing 21.027.09 - Approved Plan with Areas of Covered Decks & Terraces Highlighted; and j. Drawing 21.027.10 - Proposed Plan with Areas of Covered Decks & Terraces Highlighted. 10. External Finishes dated 8 September 2021; 11. Internal Finishes dated 8 September 2021; 12. Engineers Building Structural Assessment dated 8 March 2021; 13. Statement of Evidence prepared by The Acoustic Group dated 29 October 2021; and 14. Statement of Environmental Effects prepared by Allen Price & Scarratts Pty Ltd dated October 2021.
The substantive order sought in the BIC Appeal is as follows: 1 … an Order that the Court exercising the discretion of the Respondent agrees that the BIC Application, being the Application numbered BC21/1050, may be amended or varied by the Applicant in accordance with the documents listed in Annexure "A". … ANNEXURE A 1. Schedule of Amendments; 2. Slab Cross Sections & Footings prepared by Westlake Punnet dated 6 July 2018 a. Drawing 17539EC/1B -Structural Notes; b. Drawing 17539EC/2A - Health and Safety Notes; c. Drawing 17539EC/3C - Footing & Slab Plan; d. Drawing 17539EC/4C - Slab Cross Sections Details; e. Drawing 17539EC- Slab Cross Sections Details 3. Engineers Building Structural Assessment dated 8 March 2021; Plumbing Assessment prepared by TSS Total Surveying Solutions; 5. Site Plan prepared by Tadhg O Foghlu dated October 2021; 6. Survey Plan prepared by Allen Price & Scarratts Pty Ltd dated 7 October 2021; Landscape Plan prepared by Realm Studios dated 21 October 2021; Proposed Civil Works prepared by Westlake Punnett dated 19 October 2021 a. Drawing 20568-C01 - Notes - Revision B b. Drawing 20568-C02 - Stormwater & Car Parking arrangements Plan - Revision B; c. Drawing 20568-C03 - Stormwater Management Details; d. Drawing 20568-C04 - Soil Water & Management Details; 9. Traffic, Access & Parking Arrangement Plan prepared by Westlake Punnett dated 1 September 2021 - Revision A; a. Drawing 20568 - C06 - Traffic, Access & Parking Arrangement Plan Comparison dated 18 October 2021 10. Comparison Plans prepared by Tadhg O Foghlu dated October 2021 a. Drawing 21.027.01 - Comparative Plans - Building Footprints; b. Drawing 21.027.02 - Comparative Plans - Overall Gross Floor Area; c. Drawing 21.027.03 - Elemental Comparative Plans; d. Drawing 21.027.04 - Comparative Elevations and Section; e. Drawing 21.027.05 - Comparative Elevations; f. Drawing 21.027.06 - Submitted Section 4.55 Plan; g. Drawing 21.027.07 - Proposed West & East Elevations; h. Drawing 21.027.08 - Proposed North & South Elevations; j. Drawing 21.027.09 - Approved Plan with Areas of Covered Decks & Terraces Highlighted; and j. Drawing 21.027.10 - Proposed Plan with Areas of Covered Decks & Terraces Highlighted. 11. External Finishes dated 8 September 2021; and 12. Internal Finishes dated 8 September 2021.

[5]

Environmental Planning and Assessment Act 1979 (NSW)

Relevant sections of the EPA Act follow: Part 4 Development assessment and consent … Division 4.9 Post-consent provisions … 4.55 Modification of consents - generally (1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6) and Part 8 do not apply to such a modification. (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. … (8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court. … Part 6 Building and subdivision certification … Division 6.7 Building information certificates 6.22 Who may apply for building information certificates The following persons may apply for a building information certificate in relation to a building - (a) the owner of the land on which the building is erected, (b) any other person with the consent of the owner of that land, (c) the purchaser under a contract for the sale of property that comprises or includes the building, or the purchaser's Australian legal practitioner or agent, (d) a public authority that has notified the owner of that land of its intention to apply for the certificate. 6.23 Making of applications for building information certificates (1) Applications for building information certificates are to be made to the council for the area in which the land to which the application relates is situated. (2) The regulations may provide for the procedure for making and dealing with applications for building information certificates. (3) The regulations may assign an area that is outside a local government area to be part of a specified adjoining local government area in relation to building information certificates. For the purposes of this Division, the assigned area is taken to be a part of the local government area concerned. … 6.25 Issue, nature and effect of building information certificate (1) A building information certificate is to be issued by a council only if it appears that - (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993 - (i) to order the building to be repaired, demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. (2) A building information certificate is a certificate that states that the council will not make an order or take proceedings referred to in subsections (3) and (4). (3) A building information certificate operates to prevent the council - (a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and (b) from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, in relation to matters existing or occurring before the date of issue of the certificate. (4) A building information certificate operates to prevent the council, for a period of 7 years from the date of issue of the certificate - (a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and (b) from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear. (5) However, a building information certificate does not operate to prevent a council from making a development control order that is a fire safety order or a building product rectification order (within the meaning of the Building Products (Safety) Act 2017). (6) An order or proceeding that is made or taken in contravention of this section is of no effect. … Part 8 Reviews and appeals Division 8.3 Appeals - development consents … 8.9 Appeal by applicant - modifications of development consent An applicant for the modification of a development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. … Division 8.6 Appeals - Miscellaneous … 8.25 Appeals with respect to building information certificates (1) An applicant - (a) who is dissatisfied with a council's refusal to issue a building information certificate under Part 6, or (b) who is dissatisfied with a council's failure to issue a building information certificate within the period prescribed by the regulations, or (c) who is dissatisfied with a notice from the council to supply information in connection with an application for a building information certificate, may appeal to the Court. (2) The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against or the end of the deemed refusal period referred to in subsection (1). (3) On hearing the appeal, the Court may do any one or more of the following - (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate. …

[6]

Environmental Planning and Assessment Regulation 2000 (NSW)

Relevant sections of the EPA Regulation follow. I note that cl 121B was inserted on 14 July 2021 by the Environmental Planning and Assessment Amendment (Modifications) Regulation 2021 (the Amending Regulation). Part 6 Procedures relating to development applications … Division 1 Development applications generally … 55 Amendment or variation of development applications except for State significant development (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, by lodging the amendment or variation on the NSW planning portal. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include 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 4.13 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. (4) This clause does not apply to a development application for State significant development. 55AA Amendment or variation of development applications for State significant development (1) A development application for State significant development may, with the agreement of the consent authority, be amended or varied by the applicant at any time before the application is determined. (2) An application to amend or vary a development application for State significant development must - (a) be in the form approved by the Planning Secretary and made available on the NSW planning portal, and (b) include particulars of the nature of the proposed amendments or variations, and (c) be prepared having regard to the State Significant Development Guidelines, and (d) be lodged on the NSW planning portal. 55A Amendments with respect to BASIX commitments … (2) Without limiting clause 55, a development application may be amended or varied by the lodging of - (a) a new BASIX certificate to replace a BASIX certificate that accompanied the application, or to replace any subsequent BASIX certificate lodged under this clause, and (b) if any new accompanying document is required or any existing accompanying document requires amendment, a new or amended accompanying document. … Division 12 Development consents - extension, completion and modification … 121B Amendment of modification application - the Act, s 4.64(1)(q) (1) An application for modification of a development consent may, with the agreement of the consent authority, be amended by the applicant at any time before the application is determined by lodging an amendment on the NSW planning portal. (2) If the amendment results in a change to the development, the applicant must provide the consent authority with details of the nature of the change to the application. … Part 7 Procedures relating to complying development certificates Division 1 Applications for complying development certificates … 129A Amendments with respect to BASIX commitments … (2) An application for a complying development certificate may be amended or varied by the lodging of - (a) a new BASIX certificate to replace a BASIX certificate that accompanied the application, or to replace any subsequent BASIX certificate lodged under this clause, and (b) if any new accompanying document is required or any existing accompanying document requires amendment, a new or amended accompanying document. … Part 10 State significant infrastructure … 192 Applications for approval … (2) An application may, with the approval of the Planning Secretary, be amended or varied at any time before the application is determined. … 196B Amendment of request for modification of Minister's approval - the Act, s 5.29 (1) A request to modify the Minister's approval for State significant infrastructure under the Act, section 5.25(2) may be amended by the proponent, with the agreement of the Planning Secretary, at any time before the request is determined. (2) The amendment must include details of the nature of the change to the request to modify the Minister's approval. (3) The amendment must be lodged on the NSW planning portal. … Part 15 Fees and charges … Division 2 Other fees and charges … 260 Fee for building information certificate (1) For the purposes of section 6.23(2) of the Act, the fee for an application for a building information certificate in relation to a building is - (a) in the case of a class 1 building (together with any class 10 buildings on the site) or a class 10 building, $250 for each dwelling contained in the building or in any other building on the allotment, or (b) in the case of any other class of building, as set out in the Table to this clause, or (c) in any case where the application relates to a part of a building and that part consists of an external wall only or does not otherwise have a floor area, $250. … Part 17 Miscellaneous … 280 Application for building information certificate (1) An application for a building information certificate in relation to the whole or a part of a building may be made to the council by - (a) the owner of the building or part or any other person having the owner's consent to make the application, or (b) the purchaser under a contract for the sale of property, which comprises or includes the building or part, or the purchaser's solicitor or agent, or (c) a public authority that has notified the owner of its intention to apply for the certificate. (2) An application must be accompanied by the fee payable under clause 260. (2A) An application must be lodged on the NSW planning portal. (3) Despite subclause (1)(a), the consent in writing of the owner of the building or part is not required if the applicant is a public authority and the public authority has, before making the application, served a copy of the application on the owner. 281 Form and issue of building information certificate (1) A building information certificate must contain the following information - (a) a description of the building or part of the building being certified (including the address of the building), (b) the date on which the building or part of the building was inspected, (c) a statement to the effect that the council is satisfied as to the matters specified in section 6.25(1) of the Act, (d) a statement that describes the effect of the certificate in the same terms as, or in substantially similar terms to, section 6.25 of the Act, (e) the date on which the certificate is issued. (2) The building information certificate must be issued to an applicant by means of the NSW planning portal. …

[8]

Interpretation Act 1987 (NSW)

Relevant sections of the Interpretation Act 1987 (NSW) (Interpretation Act) follow: Part 2 Words and expressions … 21 Meanings of commonly used words and expressions (1) In any Act or instrument - … statutory rule means - (a) a regulation, by-law, rule or ordinance - (i) that is made by the Governor, or (ii) that is made by a person or body other than the Governor, but is required by law to be approved or confirmed by the Governor, or (b) a rule of court. … Part 6 Statutory Rules and certain other instruments … 39 The making of statutory rules (1) A statutory rule - (a) shall be published on the NSW legislation website, and (b) commences on the day on which it is so published or, if a later day is specified in the rule for that purpose, on the later day so specified. (2) Subsection (1) does not prevent a statutory rule from specifying different days for the commencement of different portions of the rule. (2A) Neither the whole nor any part of a statutory rule is invalid merely because (without statutory authority) the statutory rule is published on the NSW legislation website after the day on which one or more of its provisions is or are expressed to commence. In that case, that or those provisions commence on the day the statutory rule is published on the NSW legislation website, instead of on the earlier day. (3) If an Act provides for the making of a statutory rule by a person or body other than the Governor, but the rule is required by law to be approved or confirmed by the Governor, subsections (1) and (2A) do not apply to the rule unless it has been approved or confirmed as so required. (4) The Governor may, by order published on the NSW legislation website, exclude any specified class of statutory rules from the application of this section, but may do so only - (a) in respect of statutory rules made under Acts passed before the commencement of this Act, and (b) if, immediately before the commencement of this Act, section 41 of the Interpretation Act 1897 did not apply to statutory rules of that class. (5) This section does not apply to the Standing Rules and Orders of the Legislative Council and Legislative Assembly. …

[9]

Evidence

Ms Lily Whiting, solicitor, affirmed an affidavit dated 1 November 2021 in both proceedings. Annexure A to her affidavit in the BIC Appeal became Ex A. Annexure A to her affidavit in the Modification Appeal became Ex B. The affidavits respectively describe the history of the BIC application and modification application, the history of the respective proceedings and the similar amendments sought to be made to the respective applications now before the Court.
Exhibit A contained various documents constituting the proposed amended material in the BIC application essentially as described in the notice of motion. Exhibit B contained various documents constituting the proposed amended material in the modification application essentially as described in the notice of motion.
Ms Whiting deposed that she believes it is in the interests of the just, quick and cheap resolution of proceedings that the amendments be granted because the Applicant wishes to narrow the issues and address the contentions in the Council's Statement of Facts and Contentions (SOFAC) of 25 August 2021.
The affidavit of Mr Andrew Brickhill, solicitor, affirmed 8 November 2021 was read by the Council. Mr Brickhill's affidavit contained lengthy annexures including the relevant BIC application, the Council's SOFAC in both proceedings, the Applicant's SOFAC in Reply in both proceedings, and emails between the Council's solicitors and the expert witnesses retained on their behalf for the hearing in December 2021.
Mr Brickhill deposed that on 6 November 2021, he had a conversation with Mr McLaren, the expert traffic engineer retained for the Class 1 proceedings, where Mr McLaren stated that: 1. There is no information in the documents provided by the Applicant (Ex A and Ex B) of the number and frequency of external horses that will be brought to the property, which is needed to assess traffic impacts. 2. In respect of the proposed loop road, new considerations arise requiring information and assessment as to its alignment for the design vehicle types, an assessment of pavement strength and a maintenance regime. 3. The Applicant has not provided any swept path plans. An emergency fire tanker vehicle should be the design vehicle. It is unclear if tress need to be cut to allow movement of vehicles such as fire trucks and minibuses. 4. No details have been provided that confirm the overflow parking area is fit for purpose. No swept paths have been provided and no details of the terrain. These details are needed to assess whether the overflow car park will work. There needs to be information on the maximum length of vehicles, the amount of ground clearance and whether earthworks are required.
On 8 November 2021, Mr Brickhill received an email from Mr Jeremy Swan, the town planner retained by Council for the Class 1 proceedings, in which Mr Swan commented on the effect of the amendments proposed to both the BIC application and the modification application. Mr Swan found that the architectural plans have been amended and incorporate changes including: 1. the parking arrangements have changed so that the parking spaces are adjacent to the building and there is an overflow parking area in a third location; 2. the parking circulation has changed with a loop road now proposed; 3. the location of the rainwater tanks has moved; 4. landscaping around the facility has been modified; 5. a pedestrian pathway has been added between the 25 parking bays and the facility; 6. the internal floor layout of the function space has been changed with the dance floor shifting from the middle to the south; 7. the stormwater plans have been amended including moving rainwater tanks and stormwater trenches; 8. the landscape plan has been significantly modified; 9. a plan of management has been prepared which goes into detail on the use of the property, which was not previously included.
In Mr Swan's opinion, the amendments will not narrow the issues in dispute or address any issues of concern and will give rise to additional contentions. The new material raises the following issues: 1. traffic intensification; 2. insufficient information from the documents; 3. no proper elevations proposed, no detail on cut and fill is shown; 4. lack of clarity on what documents one of the experts has reviewed or whether he has contributed to the plan of management; 5. the comparison documents are flawed and will give rise to additional particulars; 6. the documents are not complete; 7. the Statement of Environmental Effects does not refer to modification type.
In Mr Swan's opinion, if leave were granted he believed there would be difficulty in dealing with the amended modification application and BIC application because: 1. they would need to be renotified for a minimum of 14 days, perhaps from 15-29 November 2021; 2. they would need to be re-referred to the Rural Fire Service as a Bushfire Safety Authority is required; 3. following these processes the SOFAC would need to be amended and filed; 4. even if all of this could be completed by 3 December 2021, this leaves less than two weeks before the start of the hearing to complete the joint conferencing process which in his experience is unworkable.
In Mr Swan's opinion, assuming a minimum requirement of a week from the filing of the SOFAC to complete joint conferencing, the timeframes are extremely tight if not unworkable.

[10]

Modification of modification application permissible

That cl 121B of the EPA Regulation was introduced after the Council made its determination to refuse the Applicant's modification application and the subsequent commencement of these appeals does not prevent its application in relation to the Modification Appeal and the notice of motion to amend. The clause has ambulatory effect, meaning retrospective, so that for as long as the application is undetermined it can apply. As an appeal has been commenced in the Court and the Court has yet to determine the matter the matter remains undetermined. Clause 121B does not limit the time for the application to the modification application.
The word "had" in s 39(2) of the LEC Act is predicated on a determination of an application in which the Council is functus officio in relation to the modification application. The Court in an appeal is rehearing the matter and receives fresh evidence entailing the making of a new determination, not a review of a council's original decision. At the hearing of the appeal the Court must determine the appeal on the law as it exists at the date of the appeal, not the law at the date of a council's determination. That includes the powers of the consent authority as exist at the date of any hearing appeal. Accordingly cl 121B applies in relation to the Court's determination of this motion.
The absence of a savings provision gives immediate effect to any legislative change. The discretion to amend exists prior to the application being determined.
The Council's position is founded on the common law rule against retrospective application. There are two relevant instances where the presumption does not apply. One relevant instance is where the enactment in question takes account of past facts and circumstances as a basis for what it prescribes in the future: see Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 at 31 (Jordan CJ); Pearce and Geddes, Statutory Interpretation in Australia (8th ed, 2014) at [10.4]. In this instance the Amending Regulation has future operation, but by reference to past acts (namely the commencement of the appeal) and therefore does not attract the presumption against retrospectivity.
Another relevant instance when the presumption against retrospectivity does not apply is where the statute or delegated legislation is concerned with matters of procedure only: Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7; Pearce and Geddes, Statutory Interpretation in Australia (8th ed, 2014) at [10.21]-[10.23]. A statute that amends prescribed procedure will also apply to actions commenced but only partly completed when the change in procedure is made: Pearce and Geddes, Statutory Interpretation in Australia (8th ed, 2014) at 415. Here, the Amending Regulation is procedural in nature (i.e. going to an amendment) but is not substantive and does not otherwise alter the substantive rights related to the application(s).
Cavcorp Australia Pty Ltd v Hunters Hill Council [2021] NSWLEC 104 ("Cavcorp Australia") supports the Applicant's approach.

[13]

Modification application

The Council determined the modification application by a refusal on 1 June 2021. The Amending Regulation introducing cl 121B of the EPA Regulation was published on the NSW legislation website on 14 July 2021. Clause 121B of the EPA Regulation provides for the amendment of a modification application.
According to s 39(1) of the Interpretation Act 1987 (NSW), a statutory rule shall be published on the NSW legislation website and commences on the day on which it is published or if a later day is specified in the rule, on the later day so specified. No later day was specified. The EPA Regulation consists of regulations within the definition of a statutory rule because they are regulations made by the Governor: s 21 of the Interpretation Act; s 10.13 of the EPA Act; Amending Regulation. In Pearce & Argument, Delegated Legislation in Australia (4th ed, 2012) at 473, the learned authors state that "in New South Wales … the prohibition against backdating is absolute. The relevant Acts provide that delegated legislation may not take effect before its date of making and notification. From this, it would seem that, in the absence of power in the enabling Act ... [regulations] cannot be made with retrospective effect." No savings and transitional provisions were enacted with the Amending Regulation.
Subsection (2) of s 39 of the LEC Act does different work to subs (3). Subsection (2) supplements the rehearing function of the Court in subs (3) to include all the functions and discretions of the body whose decision is the subject of the appeal had in relation to the subject appeal. The Council determined the modification application before cl 121B of the EPA Regulation came into effect on 14 July 2021. Accordingly, the Council did not have the power conferred by cl 121B of the EPA Regulation when it refused the modification and the Court cannot therefore exercise that function in this appeal.
In respect of the functions and discretions referred to in s 39(2) of the LEC Act the use of the past tense "had", as opposed to the present tense of "has" is a deliberate statutory choice. It provides certainty limiting the scope of other functions and discretions available to the Court to that which the consent authority possessed at the time of determination. That is, there is a temporal constraint. That interpretation, and the referential nexus to the functions and discretions that the person of body whose decision is being appealed (in this case the Council as consent authority) was vested with at the material time, has been recognised in various decisions of the Court. In the Court of Appeal decision of McDougall v Warringah Shire Council (1993) 30 NSWLR 258, Kirby P noted the use of the past tense in s 39(2) of the LEC Act, stating at 264A-B: My impression of s 39(2) by its language and apparent purpose in the scheme of the Act is that it was intended that the Land and Environment Court be placed fully in the shoes of a council at the time an application is lodged. This impression derives, in part, from the use of the past tense in the word "had", and the fact that s 39(3) of the Land and Environment Court Act directs that an appeal to the Land and Environment Court shall be by way of "rehearing". This result of this interpretation is that all the functions and discretions the council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval.
See also Biscoe J in Goldberg v Waverly Council (2007) 156 LGERA 27; [2007] NSWLEC 259. The decision of Biscoe J was more recently applied by Commissioner Gray in Waterbrook Bayview v Northern Beaches Council [2019] NSWLEC 1112 at [103]-[107], to find that s 39(2) of the LEC Act did not extend to give the Court a function that the consent authority did not have at the time that the consent authority determined the application.
Cavcorp Australia does not assist the Applicant. In that case the appeal before the Court was made directly to it under s 4.55(8) of the EPA Act: Cavcorp Australia at [5], which refers to an original modification application having been submitted to the Council (which was determined by refusal) but then a second modification application being submitted directly to the Court. It was that second application which was the subject of decision. Accordingly, the occasion whereby the functions and discretions were triggered was at the point of determination by the Court. As noted by Preston CJ at [19] the modification application which had been made directly to the Court, had not yet been determined. Clause 121B of the EPA Regulation was in force by that time such that the discretionary power was available to the Court.
Accordingly the Court has no power to amend the Modification Appeal application in the manner sought in the notice of motion.

[19]

Modification Appeal

Concerning the Modification Appeal, the Court's powers in this appeal are identified in s 39(3) of the LEC Act. Where applicable s 39(2) identifies what functions the Court can exercise in doing so. The Council determined the modification application before cl 121B of the EPA Regulation came into effect. When cl 121B was introduced no savings and transitional provisions were made. As found in Dartbrook and Duke Developments no power existed in the EPA Act or EPA Regulation for a council or the Court to modify a modification application before cl 121B was introduced.
At issue is the operation of "had" in s 39(2) of the LEC Act. Statutory construction principles include that as far as possible every word in a statutory provision ought be given work to do: Taylor v Public Service Board (1976) 137 CLR 208 at 213; [1976] HCA 36 (Barwick CJ); Pearce and Geddes, Statutory Interpretation in Australia (9th ed, 2019) at 139. The cases relied on by the Council summarised above in [38]-[39] provide compelling reasoning for how that word should be given effect, including that where a council did not have a function conferred on it at the time of making the decision from which an appeal has been commenced the Court does not have that function. The Applicant's approach in [28] stating that the Council is functus officio, meaning the Court is hearing the matter afresh and therefore has the power to amend, gives the word "had" no work to do as it effectively ignores the determination of the Council in refusing the modification application.
Section 39 of the Interpretation Act also makes clear that absent words giving a regulation retrospective effect in an enabling act, statutory rules such as the Amending Regulation have effect from when they are published on the NSW legislation website. That occurred on 14 July 2021 in relation to the Amending Regulation, after the date of Council's determination of the modification application on 1 June 2021.
The Applicant's submission that the Council is relying on common law retrospectivity is unclear but in any event cannot be correct given s 39 of the Interpretation Act. The submission that cl 121B refers to past acts is not apparent on its face. Nor is the provision appropriately characterised as procedural for the purposes of statutory construction.
The Council did not have the power to modify a modification application at the time the modification application was approved and no such power is conferred on the Court under ss 39(2) or (3) of the LEC Act. The Court has no power to make the orders in the notice of motion dated 1 November 2021 in relation to the Modification Appeal.
For the reasons given by the Council above in [40] above Cavcorp Australia does not assist the Applicant. The Court granted development consent in 2010 for a property in Hunters Hill. Cavcorp Australia made an application to modify that development consent to the council on 14 September 2018. That application was refused. Instead of appealing that decision Cavcorp Australia made a separate application to modify the development consent directly to the Court under s 4.55(8) of the EPA Act. A commissioner gave judgment in that matter on 6 July 2021 stating that he was minded to determine the modification application by approving some modifications and not others, but did not make a final determination. On 23 September 2021 Preston CJ held that the Court was able to amend the modification application under cl 121B(1) of the EPA Regulation at [18] as the matter was yet to be determined by the Court at [19].

[20]

BIC Appeal

Concerning the BIC Appeal, no express power exists in the EPA Act to enable modification of a BIC, as identified in the Council's submissions in [45]-[46]. None can be implied. The Council's submissions identify the relevant sections of the EPA Act which provide for the making of a BIC in ss 6.22-6.23, and the relevant regulations in cll 260, 280-281 of the EPA Regulation. As the Council identified, these provisions may be contrasted with the clauses in the EPA Regulation which provide expressly for the amendment of various instruments, in cl 55 (development applications), cl 55AA (State significant development applications), cl 55A (amendment of development application by BASIX certificate), cl 129A (complying development certificate by BASIX certificate), cl 192 (State significant infrastructure approval), cl 196B (modification of Minister's approval request), and now cl 121B.
For the reasons given by the Council set out in [42]-[44] the reasoning in Dartbrook in obiter dicta confirmed in ratio decidendi in Duke Developments applies equally to the BIC provisions in the EPA Act. No express or implied power in the EPA Act or EPA Regulation allows a proponent or a consent authority to modify a BIC.
For the reasons given by the Council in [48] referring to Dartbrook at [256]-[258] the Court does not have power in an appeal to which s 39(3) applies to exercise a function which cannot arise under s 39(2). Section 8.25(3) does not confer a separate power on the Court to amend a BIC. Also as submitted by the Council relying on Dartbrook at [260]-[266], s 64 of the CP Act or Pt 19 of the UCPR do not assist the Applicant.
No principle of statutory construction was identified by the Applicant suggesting this approach was not correct.
The absence of power to amend a BIC in the EPA Act was not disputed by the Applicant and the Applicant's written submissions did not address this issue. The submission made that s 39(2) of the LEC Act enables the Court to otherwise modify the BIC application because an amendment should be equated to receiving additional information was difficult to understand. In any event, that submission cannot overcome the absence of any relevant power in the EPA Act and EPA Regulation given the reasoning in Dartbrook and Duke Developments.
The notice of motion dated 1 November 2021 in the BIC Appeal should be dismissed as the Court has no power to deal with it.
If I did have power I would not have granted the notices of motion in the exercise of my discretion in any event, due to their lateness given the impending hearing date and the unsatisfactory state of the plans sought to be relied upon. Firstly, in the course of the hearing it became apparent that the substantial overlap between the plans submitted for both proceedings was problematic.
The purpose of a BIC application and a modification of development application are not the same. An applicant needs to ensure that any plans relied on satisfy what is able to be considered in relation to a specific application. The Modification Appeal can seek leave to use buildings constructed without lawful authority. Development consent for works constructed illegally can never be granted, a long-standing legal position recently confirmed again in Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 at [39]-[45] (Preston CJ). A BIC prevents a council from making orders under the EPA Act or the Local Government Act 1993 (NSW) requiring a building to be repaired, demolished, altered added to or rebuilt and from taking civil proceedings in relation to the encroachment of buildings onto council land in relation to matters existing or occurring before the date of issuance: s 6.25(3) of the EPA Act. It has similar effect, for seven years, in relation to matters arising only from the deterioration of the building from fair wear and tear: s 6.25(4) of the EPA Act. An order or proceeding taken in contravention of s 6.25 is of no effect: s 6.25(6) of the EPA Act. Plans submitted to support each of these respective applications must address what can be dealt with in relation to each appeal, and these did not.
Secondly, neither set of plans clearly identified what was sought within the legal framework for what can be considered in either appeal. The plans filed to support each of the motions failed to identify in any comprehensible way how they supported the respective applications. For the Modification Appeal the plans failed to identify what was built in accordance with DA17/1157, what had been built without the authority of that development consent, and presumably therefore for which use was sought, and what new work consent was being sought for if any.
The BIC Appeal plans which largely overlapped the Modification Appeal plans had the same two difficulties. Any new work is irrelevant to such an application.
Further, as identified in the evidence of traffic engineer Mr McLaren (see [22] above) and town planner Mr Swan (see [23]-[26] above) referred to in Mr Brickhill's affidavit there are numerous deficiencies with the plans for both appeals. Rather than clarifying matters the state of the plans introduces more uncertainty.
It is unnecessary to consider the second ground relied on by the Council of whether the plans represented a new development and were therefore impermissible in the Modification Appeal.

Scarf v Shoalhaven City Council

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