Case note: Scarf v Shoalhaven City Council

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Case note: Scarf v Shoalhaven City Council

By Gabriella Hijazi and Alyce Kliese

A judgment of the NSW Land and Environment Court (LEC) has addressed a consent authorities’ power to allow an amendment of a modification application and its power, or lack thereof, to amend a building information certificate application.

In Scarf v Shoalhaven City Council [2021] NSWLEC 128 (Scarf) Justice Pain of the Land and Environment Court made the following findings:

  1. Clause 121B of the Environmental Planning and Assessment Regulation 2000 (Regulation) has no retrospective effect;
  2. there is no power for a consent authority to allow an applicant to amend a modification application, which was determined before the commencement of clause 121B of the Regulation on 14 July 2021; and
  3. there is no power, express or implied, within the Environmental Planning and Assessment Act 1979 (EP&A Act) to amend an application for a building information certificate, pursuant to section 8.25 of the EP&A Act.

Background to this decision 

The Chief Judge of the Land and Environment Court found in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (Dartbrook) that there was no express or implied ability within the EP&A Act for amendment to be made to an application to modify a development consent.

However, on 14 July 2021, the Regulation was amended by the <span”>Environmental Planning and Assessment Amended (Modification) Regulation 2021 to provide an express power for a consent authority to permit an amendment to be made to an application to modify a development consent through clause 121B of the Regulation. 

Facts of Scarf

In Scarf, the Applicant commenced two merits appeals in Class 1 of the LEC, appealing the deemed refusal of a modification application and building information certificate, pursuant to section 8.9 and 8.25 of the EP&A Act, respectively.

The modification application was refused prior to the commencement of clause 121B of the Regulation on 14 July 2021.

The Applicant filed a motion in each proceeding seeking leave of the Court to amend both applications.

Amendment of modification application 

The Applicant sought to amend the modification application pursuant to section 39(2) of the Land and Environment Court Act 1979. Section 39(2) provides that for the purpose of disposing of an appeal, the Court has all the functions and discretions the consent authority “had in respect of the matter the subject of the appeal.

The modification application was deemed to be refused prior to the introduction of clause 121B of the Regulation.

The Court found that as a matter of statutory construction, the use of the word “had” in subsection 39(2) of the Land and Environment Court Act 1979 means that if cCuncil did not have the power to amend the modification application at the time that it was deemed to be refused, then the Court equally does not have such power in the appeal. 

Amendment of building information certificate application

With respect to the building information certificate application, her honour applied the reasoning of the Chief Judge in Dartbrook in determining that there is no power, express or implied to amend an application for a building information certificate. You can read about the Chief Judge’s comments here.

Implications of Scarf 

The implications with respect to amending modification applications is set out in the table below.

Time of determination Power to amend
Application determined prior to 14 July 2021 Cannot seek leave to amend
>Application determined post 14 July 2021 Can seek leave to amend

In summary: 

  1. Applicants cannot seek to amend modification applications which were determined by a consent authority prior to the commencement of clause 121B of the Regulation.
  2. For modification applications determined prior to 14 July 2021 the only way to facilitate an amendment will be to discontinue the proceedings and lodge a fresh modification application. We suggest seeking legal advice in such circumstances.
  3. Applicants cannot amend an application for a building information certificate because there is no power in the EP&A Act or the Regulation to do so.

The New South Wales Government can remedy the issues identified in the Scarf case by taking steps to further amend the Regulation (and EP&A Act with respect to the building information certificate application) as it has done through the introduction of clause 121B of the Regulations.