Stopping the clock
The Court, constituted by Acting Justice Molesworth, concluded that a request for additional information from RMS in the context of responding to the DA under clause 104 does not ‘stop the clock’ under clause 110 of the EP&A Regulation. In this regard, the Court distinguished RMS’ concurrence under provisions such as clauses 84, 86, 88 and 100 of the ISEPP and RMS’ approval under s138 of the Roads Act from the opportunity to respond to the DA under clause 104 of the ISEPP.
The Court also concluded that the proposal to carry out works on a private driveway to sever the connection of that driveway with a public or classified road did not constitute any of the actions specified in limbs (a)-(e) of s138(1) of the Roads Act, and therefore did not require the consent of RMS under s 138 of the Roads Act.
Resetting the clock
The Court identified three requirements to be met under clause 55 of the EP&A Regulation to amend a DA, and held that that the onus rests with an applicant to establish that these requirements are met. Amendments that do not meet these requirements will not ‘reset the clock’ under clause 113 of the EP&A Regulation.
First, the consent authority must agree to a DA being amended. Silence or inaction by the consent authority following an amendment is not agreement. There needs to be an identifiable response which is focussed on the amendment.
Second, the application to amend must contain sufficient particulars to indicate the nature of the amendments. To meet this requirement, the application to amend must have annexed to it written particulars sufficient to indicate the nature of the changed development. Although not required under the legislation, a comparative table is frequently adopted as a sensible approach. Critically in this case, the amended plans did not adhere to the professional standard applying to the revision of plans, to include in the legend box a revision number, changed plan date and particulars of the amendments to the plan.
Third, there must be certainty with respect to any material amendment. Communications which merely suggest or ‘float’ hypothetical amendments or conceptual alternatives with the consent authority do not have the effect of amending the DA. Nor does dialogue between an applicant and a consent authority regarding possible conditions of consent, or amendments to such conditions, constitute an amendment to a DA.
The Court referred to the recent decision in Lateral Estate Pty Ltd v The Council of the City of Sydney  NSWLEC 6 where the applicant unsuccessfully argued that email correspondence with the consent authority regarding amending the draft conditions of consent was relevantly an amendment to the DA which had the effect of ‘resetting the clock’. In that case, Sheahan J observed:
“A specific form is not prescribed for an amendment to a DA, but it must be made clear to the consent authority that an amendment is proposed. Only then can the consent authority agree to allow the amendment, and do whatever else it is obliged to do, and only then can “deferred refusal” rights arise again… the statutory regime allows that to occur, and it is “not absurd or inconvenient”, but a “second deemed refusal period would only arise in a situation which (sic) the council accepts an amended development application”.