WRITTEN BY Andrew Brickhill
In a significant decision of the Land and Environment Court of NSW handed down on Monday, the Court determined that there is no express or implied ability within the Environmental Planning and Assessment Act 1979 (EPA Act) to amend an application for a Building Information Certificate (BIC). In the same decision, the Court also determined that there is also no ability for an applicant to amend an application to modify a development consent which was determined prior to 14 July 2021. The decision, handed down in Scarf v Shoalhaven City Council (Scarf), has significant implications for the assessment and determination of Building Information Certificate applications. The case also represents a further development of the law with respect to the ability to amend a modification application under the (EPA Act since the decision in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces  NSWCA 112 (AQC Dartbrook) was handed down on 3 June 2021
In AQC Dartbrook, Preston CJ found that there was no express or implied ability within the EPA Act for an amendment to be made to an application to modify a development consent. This decision came as a surprise to many, and as a result, on 14 July 2021, the Environmental Planning and Assessment Regulation 2000 (the Regulation) was amended by the Environmental Planning and Assessment Amended (Modification) Regulation 2021 (the Amending Regulation). The Amending Regulation provided an express power for a consent authority to permit an amendment to be made to an application to modify a development consent. The relevant power, found in cl. 121B of the Regulation, is drafted in similar terms to cl.55, which provides an applicant with the ability to amend an application for development consent. Significantly, the Amending Regulation did not expressly extend the operation of clause 121B to modification applications determined prior to its commencement on 14 July 2021. It also did not make any provision with respect to amending applications for Building Information Certificates
The decision in Scarf
The decision in Scarf concerned two separate Class 1 merits appeals: one commenced against the deemed refusal of the Council to issue a BIC, and the other against the Council’s actual refusal of an application to modify a development consent on 1 June 2021. Both proceedings concerned a building to be used as an equine educational centre and function centre (on a temporary basis).
The applicant filed notices of motion seeking leave to amend both the modification application and the BIC application following an s.34 conciliation conference. The Council opposed leave being granted for several reasons, including that:
The applicant argued that the Court had the power to amend the BIC application by virtue of s. 39(2) of the LEC Act. It submitted that this section allowed the Court to exercise the functions of the consent authority and extended to the receipt of additional information about a BIC. The applicant argued that this was sufficient to enable the Court to allow an amendment to the BIC application. The applicant also submitted that cl. 121B of the Regulation had a retrospective effect and, as long as the modification application remained undetermined by the Court, clause 121B now applied to permit an amendment.
The Court agreed with the Council that the reasoning in AQC Dartbrook and Duke applies equally to the BIC provisions, and there is no express or implied power within the EPA Act for an application for a BIC to be amended. As for the modification application, the Court agreed with the Council that cl. 121B of the Regulation does not have a retrospective effect. Pain J held that, because the Council did not have the power to agree to an amendment of the modification application at the time the modification application was determined, subsections 39(2) and (3) of the LEC Act did not confer any such power upon the Court.
As a consequence, the Court dismissed the applicant’s motions to amend the BIC application and the modification application.
The Court’s decision with respect to the BIC Application has significance for both applicants for BICs and consent authorities.
It now seems clear that there is no ability for an applicant to amend an application for a BIC once it has been made. Unless and until there is an amendment of the Regulations, any amendment of a BIC application would need to be by way of a new application to the Council.
The Court’s decision with respect to amending applications to modify development consents only has implications for applications determined by a consent authority prior to 14 July 2021 when the Amending Regulation commenced. Nevertheless, given that the timeframe for commencing merit appeals has been extended in response to the COVID-19 pandemic, developers should be mindful that, if they are dissatisfied with the decision of a consent authority in respect of a modification application made prior to 14 July, there will be no ability for that application to be modified during the course of an appeal absent a further amendment to the Regulation
The NSW Government acted swiftly to amend the EPA Regulation in response to the AQC Dartbrook decision. It is likely, in our view, that a similar amendment will be made to accommodate the amendment of BIC Applications. However, until such time as that occurs, any decision of a Council to issue a BIC which has been amended since its lodgement will be susceptible to being set aside.
If you require assistance or further information regarding modification applications or BICs or, contact BAL Lawyers on (02) 6274 0999 and our experienced Planning, Environment and Local Government team can help.
  NSWLEC 128. BAL Lawyers acted for the Council.