Summary: The LEC has recently found that the proposed amendments to a development application on appeal were outside the power to amend, and in accordance with s 4.19 of the Environmental Planning and Assessment Act (EPA Act), and the substantive use as sought in the original development application submitted to Council is limited to the use as sought in the Class 1 Application.
Facts: In the matter of Reid v Woollahra Municipal Council [2023] NSWLEC 1611, the applicants sought leave to amend their development application (DA) to rely on amended plans and documents. The respondent, Woollahra Municipal Council (Council) opposed the application for leave to amend. The substantive proceedings were brought pursuant to ss 8.7 and 8.11 of the EPA Act against Council’s deemed refusal of a DA, which originally sought consent for demolition of an existing attached dual occupancy and construction of a new attached dual occupancy. The amended plans and documents sought a change to the erection and use of the development from an attached dual occupancy to a single dwelling.
Issues:
- Power and Scope of ss 37 and 38 of EPA Regulation 2021: do they have the same effect as cl 55 of EPA Regulation 2000?
The parties jointly submitted, and the LEC held, that the powers to make an application to amend a DA is contained in ss 37 and 38 of Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021), which corresponded to the former power in cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000).
The LEC determined that the power and scope of ss37 and 38 of the EPA Regulation 2021 were the same as cl 55 of the EPA Regulation 2000.
- Meaning of “at any time before a DA is determined” under s37 of the EPA Regulation 2021
The second issue concerned the meaning of “at any time before a development application is determined” in s 37 of the EPA Regulation 2021, and whether the application to amend was submitted before such time. This in turn gives rise to the question whether there was power for the applicants to apply to the Court to amend their DA after the Council had determined to actually refuse the DA, enlivening the Court’s power to exercise the consent authority’s function under s 38 of the EPA Regulation 2021.
Council submitted that the power was not available to the Court, that the words “at any time before a development application is determined” meant that in circumstances where Council had determined to refuse the DA, there was no power for the applicants to make an application to amend.
The LEC held that “time” before a DA is determined is any time up to the date the DA is finally determined by the Court, and that the Council’s interpretation of s 37(1) of the EPA Regulation 2021 as preventing the applicants from applying to amend a development application in circumstances where there has been an actual refusal by a consent authority is to misunderstand the Court’s power in re-exercising a consent authority’s functions when on appeal to the Court.
The LEC further held that the Court had power by operation of s 39(2) of the Land and Environment Court Act 1979 (LEC Act), to exercise the function of the Council as the consent authority, under s 38(1) of the EPA Regulation 2021, to determine applications made pursuant to s 37, and that power was available to the Court up until the Court’s final determination of the appeal, at which time the decision of the Court was substituted for the decision of the consent authority and was deemed to be the “final decision” of the consent authority.
- Whether the amendments sought have the same effect amounting to a fresh application
Having dealt with the Court’s powers on appeal, the Court then turned to the substantive question of whether the nature of the amendments sought by the applicants, submitted under s 37 of the EPA Regulation 2021, have the effect of constituting a fresh application, thereby precluding their approval.
The LEC adopted the approach in Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155, asking the following questions:
- Is the power available as a matter of statutory construction having regard to its scope and the proposed amendments; and
- Should the power be exercised on discretion?
The amendments proposed must be within the power available under the relevant regulation, and at the heart of the issue, the power to amend is only the power to change an application but not to propose what would amount to a new or fresh application. Such a proposal to amend must “answer the overall description and essence of the development as originally proposed”: Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90 at [10].
In Reid, the applicants submitted that the amended architectural plans made mostly internal modifications to remove infrastructure such as stairs, entrances, and lifts. Council submitted that a dual occupancy is a separate and distinct use from that of a single dwelling, such that the amendments would not be able to answer the same description of development as the original application, because the “essence” and characterisation would be changed.
The LEC held that by operation of s 4.19 of the EPA Act, the original DA being for the specified purpose of an attached dual occupancy was limited to that use. Since the amendment proposed the erection and use of a single dwelling house, the proposed amendments could not answer the description of the original DA, and as such they would be outside the power available under the relevant regulation.
Accordingly, the LEC rejected the application requesting leave to amend the DA.
Key Take Aways
- the power and scope of ss 37 and 38 of the EPA Regulation 2021 was the same as clause 55 of the EPA Regulation 2000;
- the power to amend a DA is the power to change an application, not to propose a new or original application;
- a proposal to amend must answer the overall description and essence of the development as originally proposed.
