A decision handed down on 6 July has distinguished recent comments of Preston CJ in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces  NSWCA 112 (Dartbrook), that there is no statutory power for a modification application under s 4.55 of the Environmental Planning and Assessment Act 1979 (EP&A Act) to be amended after it has been lodged.
This decision was affirmed on 2 July in Duke Developments Australia 4 Pty Limited v Sutherland Shire Council  NSWLEC 69 byRobson J. However, on 6 July 2021, Clay AC in Cavcorp Australia Pty Ltd v Hunters Hill Council  NSWLEC 1392 held that the Court has power to amend an application to modify a consent granted by the Court that has been made directly to it under s 4.55(8) of the EP&A Act. These applications include “any document in the proceedings” under section 64 of the Civil Procedure Act 2005 (CP Act), overcoming the hurdle identified by Preston CJ in Dartbrook. Cavcorp, in contrast with Dartbrook and Duke, related to an application made to the Court to modify a consent previously granted by the court, not an appeal against a decision of the relevant consent authority. As such, Clay AC found that this difference in circumstances in which the application was brought meant that s 64 of the CP Act gave the Court power to amend the modification application. This case is important in illustrating how different circumstances can influence the amendment of applications under the EP&A Act.