Land and Environment Court New South Wales Medium Neutral Citation: Aesthete No. 9 Pty Limited v Blue Mountains City Council [2024] NSWLEC 1222 Hearing dates: 28 March 2024 Date of orders: 26 April 2024 Decision date: 26 April 2024 Jurisdiction: Class 1 Before: Adam AC Decision: The Court orders: (1) The Applicant is directed to apply to the Respondent under s 113(1) of the Environmental Planning and Assessment Regulation 2021 (2021 EPA Regulation) to amend the modification application made on 21 December 2021 by 1 May 2024. (2) The Respondent is to approve or reject the application to amend the modification application under s 113(4) of the 2021 EPA Regulation by 6 May 2024. (3) If the Applicant applies under (1) and the Respondent approves the application under (2), leave is granted to the Applicant to reopen its case on the modification application as amended. (4) The Respondent is directed to file written submissions on the deletion of condition 83 by 10 May 2024. (5) The modification application as amended will be heard and determined on the papers. (6) Leave is granted to the parties to relist the matter on 2 days' notice to apply for further or different directions. (7) The proposed modified Vegetation Management Plan (VMP) and arborist's report are to be filed by 1 May 2024 and the Respondent is directed to file written submissions regarding the proposed modified VMP and arborist's report by 10 May 2024. Catchwords: PRACTICE AND PROCEDURE – application to amend modification application before the Court – modification application heard but not finally determined – application to reopen case – procedure for making application to amend modification application – whether application must be made to consent authority – role of Court exercising the functions of a consent authority Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979, s 4.5 Land and Environment Court Act 1979, s 39 Environmental Planning and Assessment Amendment (Modifications) Regulation 2021 Environmental Planning and Assessment Regulation 2000, cll 121, 121A, 121B Environmental Planning and Assessment Regulation 2021, s 113 Cases Cited: Aesthete No. 9 Pty Limited v Blue Mountains City Council [2023] NSWLEC 1711 AQC Dartbrook Management Pty Limited v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69 MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215 Category: Procedural rulings Parties: Aesthete No. 9 Pty Limited (Applicant) Blue Mountains City Council (Respondent) Representation: Counsel: A Pickles SC and F Amirbeaggi (Solicitor) (Applicant) T Cork (Solicitor) (Respondent) Solicitors: Yates Beaggi Lawyers (Applicant) McPhee Kelshaw (Respondent) File Number(s): 2022/44512 Publication restriction: Nil JUDGMENT 1. The Applicant, Aesthete No. 9 Pty Limited, initiated a Class 1 appeal against the deemed refusal by the Respondent, Blue Mountains City Council (the Council), of modification application SM/45/2015B to modify the development consent granted for the subdivision and associated works at 54 Luchetti Avenue, Hazelbrook (site). The application sought to modify development consent SM/45/2015A by modifying various conditions of consent relating to engineering issues and the vegetation management plan (VMP). 2. There is a long history of litigation in relation to the subdivision proposal for the site, which is summarised in Aesthete No. 9 Pty Limited v Blue Mountains City Council [2023] NSWLEC 1711. In the judgment, I indicated that I was minded to grant the appeal, but I directed that the parties address the matters raised in the judgment and provide to the Court an agreed set of conditions which will form Annexure A to the judgment, and a consolidated set of conditions which would become Annexure B. These documents were to be provided to the Court by close of business on 15 December 2023. In addition, the parties were required to submit a revised version of the VMP. The Applicant seeks to amend the modification application 1. Subsequent to 15 December 2023 there followed a number of directions hearings during the course of which the Applicant proposed the deletion of proposed conditions 75(d), 79(d) and 83. This application was not part of the original modification application that is the subject of the appeal. The Court invited the applicant to file a notice of motion seeking leave to amend the modification application and the appeal. 2. On 14 March 2024, the Applicant filed a Notice of Motion to reopen the proceedings and to amend the modification application (NoM). The Deputy Registrar required amended wording to the NoM and set down the NoM for hearing before me on 28 March 2024. The amended NoM was filed on 21 March 2024. 3. The NoM before me on 28 March 2024 was: "1 The proceedings be reopened. 2 The modification application made on 21 December 2021 be amended nunc pro tunc such that it seeks deletion: 2.1 condition 75(d), 2.2 condition 79(d), and 2.3 condition 83." 1. The substantive matter in the proceedings was an application to modify an existing development consent for a 21-lot subdivision of the site. Whatever the outcome of the appeal there is an existing development consent, granted in 2017 and modified in 2019; it remains in force. 2. The Applicant's NoM seeks the deletion of existing consent conditions 75(d), 79(d) and 83. 3. The NoM submitted by the Applicant gives rise to a jurisdictional procedural issue—what is the power of the Court to grant leave to amend a modification application before the Court, before the modification application has been determined finally by the Court? 4. I drew the parties' attention to s 113 of the Environmental Planning and Assessment Regulation 2021 (2021 EPA Regulation), which provides the power and procedure for amending a modification application. I expressed doubt as to whether s 113 permitted the Court to use s 39(2) of the Land and Environment Court Act 1979 (LEC Act) directly without a prior application having been made by the Applicant to the Council. 5. The parties were surprised that I raised this issue. "CORK: … Perhaps I think that both Mr Amirbeaggi and myself are surprised here by your understanding of s 113. Now, I'm not suggesting you are wrong. You may very well be right. I must admit, I took the words "consent authority" to mean the Court exercising the functions of the consent authority as well as the counsel and I suspect that may be Mr Amirbeaggi's understanding on the basis of Mr Pickles's advice as well." (Tcpt, 28 March 2024, p 3(45-50)) Mr Amirbeaggi had indicated that he had received advice of Mr Pickles, senior counsel, but this advice was not provided to the Court during the hearing. 1. At the hearing on 28 March 2024, there was agreement between the parties that, if the modification application were to be amended to seek the deletion of conditions 75(d), 79(d) and 83, conditions 75(d) and 79(d) could be deleted, but there was no agreement about the deletion of condition 83. However, Mr Cork, solicitor for the Respondent, indicated in prior submissions and at the hearing, that some amendment to condition 83 might be appropriate. 2. As a result of the discussion at the hearing of the NoM on 28 March 2024 about the interpretation and application of s 113 of the 2021 EPA Regulation, I adjourned the hearing but required that the parties make submissions on s 113 by close of business on 5 April 2024. The Applicant, through Mr Whyte (the ecological expert for the Applicant), was to make amendments to the VMP, and include the arborist's report prepared by Mr Williams as an annexure to the VMP. Mr Amirbeaggi agreed to this course of action (Tcpt, 28 March 2024, p 9(43-45)). Mr Cork agreed that the tree survey and amended VMP could be received by the Court as an exhibit (Tcpt, 28 March 2024,, pp 9(50)-10(2)). 3. Submissions were received from the Respondent prepared by Mr Cork, the Respondent's solicitor, and from the Applicant, prepared by Mr Pickles and Ms Hammond on s 113, and from Mr Amirbeaggi, the Applicant's solicitor, on condition 83. 4. Mr Cork, in his written submissions of 5 April 2024, helpfully provided a history of s 113 of the 2021 EPA Regulation and its origins in the case law starting with AQC Dartbrook Management Pty Limited v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 (Dartbrook). 5. Dartbrook had made an application to modify a development consent for an underground coal mine in the Hunter Valley. The Independent Planning Commission (IPC), as delegate for the Minister had approved in part and refused in part the modification application. Dartbrook appealed to the Land and Environment Court against the IPC's decision. The parties participated in a conciliation conference under s 34 of the LEC Act and reached an agreement. After the agreement was made a third party, the Hunter Thoroughbred Breeders Association Inc (HBTA), applied to be joined as a party to the proceedings, which was agreed to by the primary judge. Dartbrook sought leave to appeal against the decision to join HBTA. The Court of Appeal rejected HBTA's application for joinder. In the judgment, Meagher and Leeming JJA did not consider it necessary to decide whether there was power to allow the amendment of a modification application submitted to the consent authority but prior to it being determined. Preston CJ of the LEC was of the view that there was no power to allow an applicant to make a modification. "269 For the reasons I have advanced, however, this decision to allow the "minor amendments" of the application to modify the development consent is not a decision that the Court could have made in the proper exercise of its functions. The primary judge, therefore, committed no error in holding that HTBA's contention that the Court lacked jurisdiction to allow the amendment of the application to modify the development consent sought in paragraph 2(b) of the agreement was reasonably arguable. 270 Indeed, it was more than reasonably arguable, it was correct. True it is that the reason advanced by HTBA in its contention 1 for the Court not having jurisdiction was incorrect. The lack of jurisdiction flows not from the extent of the amendment of the application to modify the development consent being so great so as to convert it into a fresh modification application, but rather from there being no power in the first place to allow any amendment of the modification application. But the result is the same, regardless of the reason for the result. The Court has no power to allow the amendment to the application to modify the development consent sought in paragraph 2(b) of the agreement reached between the parties." (Dartbrook at [269]-[270] per Preston CJ) 1. Shortly after Dartbrook had been handed down, Robson J gave judgment in Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69 (Duke Developments). Robson J referred to Preston CJ's decision in Dartbrook, concluding that neither the Court nor the consent authority had the power to amend a modification application after it had been submitted. An applicant seeking to amend a modification in these circumstances would need to withdraw the application before the consent authority and submit a new application. Robson J extensively analysed Dartbrook and other authorities (at [27]-[66]). Robson J recognised that the question of power to amend a modification application was not determinative (at [42]). He nevertheless considered that Preston CJ's reasons were "seriously considered dicta" but are not binding on his consideration (at [44]) and that he was "obliged to engage with the issue and form my own view" (at [45]). 2. Shortly after the delivery of the judgments in Dartbrook and Duke Developments, the Environmental Planning and Assessment Regulation 2000 (2000 EPA Regulation) was amended by the Environmental Planning and Assessment Amendment (Modifications) Regulation 2021 (Amending Regulation). 3. Inter alia, the Amending Regulation introduced an amended clause 121 and new clauses 121A and 121B. Clause 121B has subsequently been repealed but Mr Cork considered that it was relevant (Respondent's written submissions dated 5 April 2024 at par 13), although pointing out that the replacement had slightly different wording. 121B Amendment of modification application—the Act, s 4.64(1)(q) (1) An application for modification of a development consent may, with the agreement of the consent authority, be amended by the applicant at any time before the application is determined by lodging an amendment on the NSW planning portal. (2) If the amendment results in a change to the development, the applicant must provide the consent authority with details of the nature of the change to the application. 1. From December 2021 when the 2000 EPA Regulation was repealed and replaced by the 2021 EPA Regulation, a new section (s 113) replaced cl 121B. 113 Amendment of modification application (1) An applicant may, at any time before a modification application is determined, apply to the consent authority for an amendment to the modification application. (2) The application must be made on the NSW planning portal. (3) If the amendment will result in a change to the proposed modification, the application must contain details of the change, including the name, number and date of any plans that have changed, to enable the consent authority to compare the development with the modification originally proposed. (4) The consent authority may, through the NSW planning portal, approve or reject the application. (5) If the consent authority approves the amendment, the modification application is taken to be lodged on the day on which the applicant applied for the amendment if the consent authority— (a) considers the amendment not to be minor, and (b) notifies the applicant, through the NSW planning portal, that the later day applies. 1. On 13 April 2022, s 113 was amended by inclusion of subs (6). The currently in force s 113 includes subs (6). (6) A requirement to use the NSW planning portal under this section does not apply if the modification application is subject to proceedings in the Court. 1. There is a difference, pointed out by Mr Cork, which I must assume was intentional, between cl 121B(1) of the 2000 EPA Regulation and s 113(1) of the 2021 EPA Regulation. The 2000 EPA Regulation required that the amendment could only be made 'with the agreement of the …' whereas s 113(1) reads 'apply to the consent authority'. Nevertheless, under s 113(4), the consent authority retains power to 'approve or reject' the application. 2. The application under s 113(1) must contain the details specified in s 113(3). 3. Both cl 121B and s 113 require that the application must be submitted via the NSW planning portal – except that s 113(6) provides that the requirement to use the portal does not apply "if the modification is subject to proceedings in the Court". 4. The matter is currently subject to proceedings in the Court so that s 113(6) applies. I note that the Mr Cork in par 25 of his submissions of 5 April 2024 commences "Given that the Portal is not to be used…" – this is not my interpretation. The requirement to apply via the portal is lifted by s 113(6), which does not say the portal cannot be used, rather it remains optional. An applicant may prefer not to use the portal if it is optional, but the wording of s 113 does not rule that option out. 5. The effect of s 113(6) in the case before the Court is to remove the mandatory requirement in s 113(2) that the Applicant make the application to the consent authority to amend the modification application through the portal. It also has the effect that the consent authority's determination of the application need not be conveyed through the portal (although the use of 'may' in s 113(4) perhaps suggest that notification via the portal was not the only option). 6. Section 113(5) is concerned with determining the effect of the consent authority's approval of the amendment of the modification application on when the modification application is taken to be lodged. If the consent authority considers the amendment not to be minor, the modification application is taken to be lodged on the day on which the applicant applied for the amendment of the modification application. The time on which the modification application is made may matter for the process of consideration and determination of an amended modification application by the consent authority, but not for the Court's consideration and determination of the amended modification application in this case. 7. When s 113(6) was introduced, there were no changes to other subsections which could have clarified how communication between the parties and between the parties and the Court was to be made if the parties chose not to use the portal. Section 113 is silent as to the form in which either an application to amend a modification application is to be made or communicated to the consent authority or the determination of the consent authority of the application is to be made or communicated to the applicant. 8. If there is no use of the portal, the Department of Planning, Housing and Infrastructure, which maintains the portal, is left completely out of the loop, even though this would not be the case if the matter were not before the Court. Section 113, when a matter is not before the Court, makes no mention of the method of communication to the Court about the existence of an application to amend a modification application or about the outcome of discussion between the parties. Any orders regarding process in a matter to which s 113 applies before the Court would need to specify how communication between the parties and the Court was to be conducted. 9. The Respondent, in its submissions of 5 April 2024 at par 28, suggested that the drafting of s 113 with regard to the method of communication had not been felicitous – it would be difficult not to agree. The Respondent, at par 32, suggested the application to the consent authority to amend the modification application could be by a letter (without specification that the letter be on paper). In this day and age of electronic communication it would be reasonable for 'letter' to include a communication by email. 10. The Applicant in its submissions on s 113 agrees in par 10 that s 113 does not specify the process for making an application to amend a modification application where the modification application is subject to proceedings in the Court, but does not agree that a letter is required as suggested by the Respondent. The Applicant submitted that it is sufficient in this case that the Applicant has communicated to the Respondent as the consent authority its application to amend the modification application and that the Respondent has communicated to the Applicant that it approves of that application to amend the modification application (see Applicant's submissions at pars 11 and 15). 11. Although the Respondent did not respond to this submission of the Applicant, the Respondent did accept that it agrees to the Applicant's application to amend the modification application and to the Court granting the Applicant leave to reopen the proceedings to hear the amended modification application. 12. Regarding the amended modification application, although there was agreement between the parties on the deletion of conditions 75(d) and 79(d), there was no agreement on the deletion of condition 83, which reads: 1. The Applicant has filed written submissions in support of the removal of condition 83, but the Respondent has not yet done so. Mr Cork, at the hearing of the NoM on 28 March 2024, indicated that the Council did not agree to the deletion of condition 83, although some amendment of the condition might be appropriate. However, the Respondent has not filed written submissions explaining its position or reasons for that position. 2. Mr Amirbeaggi, in his submissions on condition 83, argued that it was inappropriate to impose on future owners compliance with the VMP, given that the VMP was drawn up to apply to the subdivision stage: "9. Further, the imposition upon an individual lot owner of compliance with a VMP that was drawn specifically to manage a much larger parcel of land prior to its subdivision into 21 lots is onerous. No other lot owner within the Blue Mountains Council Local Government Area has such an obligation. The imposition will cause inconsistency for and confusion to the individual lot owners who will have an obligation to comply with obligations that were placed upon the developer to carry out a subdivision of land. 10. Further, how practically does an individual lot owner meet the objectives of the VMP when those objectives have their genesis in the pre-subdivided parcel as a whole, and where they have no control over their neighbouring lots, or where the management for their lot might lean upon management of areas that are outside of their lot. 11. … 11.3 subsection (c) cannot have work to do because there is no asset on the lot until such time as a lot owner obtains consent for construction of an asset and physically completes construction of that asset ie a dwelling. 11.4 subsection (d) requires a lot owner to report on an ongoing basis to the Council about compliance with the objectives and outcomes of the VMP when there is no such obligation on any other lot owner in the Blue Mountains Local Government Area, where maintenance of the lot is controlled under existing Council controls, where the restriction would be redundant upon construction of a dwelling, where the restriction would be used by the Council to place unreasonable or onerous conditions on future residents whether in their ownership of the lot or when they come to make application for a development consent on the parcel of the land ie "please evidence that you have complied with the VMP as part of your development application for your dwelling". It will result in over complication and inconsistency. 12. The imposition upon individual lot owners of compliance with a VMP drawn specifically to address a wider / larger parcel of land through a subdivision process is onerous and inappropriate. Draft condition 83 should be deleted." (at pars 9, 10, 11.3, 11.4 and 12) 1. Although Mr Amirbeaggi asserted in pars 9 and 11.4 that no other lot in the Blue Mountains Local Government Area (LGA) is similarly constrained, he provided no evidence of that assertion. The Blue Mountains LGA is a large area and includes many dwellings, which have been constructed over many years and under various iterations of the applicable planning instruments. 2. In arguing against the inclusion in the conditions of a positive covenant under the Conveyancing Act 1919 or conditions related to requirements of other legislation, Mr Amirbeaggi drew attention to the judgment of Lloyd J in MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215 (MacDonald) and other cases cited therein. Lloyd J concluded in MacDonald at [14]: "I am prepared in this case to follow and apply the principles explained in the abovementioned cases. I am not satisfied that the power of the Council to either grant or withhold development consent for the erection of any further or additional structure on the southern side of the applicant's dwelling house needs to be reinforced in the manner contended for by the Council. The Court has not, in the past, been favourably disposed towards conditions requiring registered restrictions as to user. In particular, Cripps J in Carr v Goulburn City Council held that it was not appropriate to impose such a condition. The abovementioned cases show that such a condition is neither necessary nor generally appropriate. I agree. In the present case, on a consideration of the merits, there is nothing in the present case that takes the matter outside those principles. The condition will not be imposed." What is the process for amending a modification application before the Court? 1. Section 113(1) of the 2021 EPA Regulation, discussed earlier, states: (1) An applicant may, at any time before a modification application is determined, apply to the consent authority for an amendment to the modification application. This clearly, on its face, requires that an applicant is to make an application to the consent authority. 1. The Respondent, in its submissions, stated at par 3: "The Respondent consents to the Court granting leave to re-open the proceedings. The Respondent also consents (subject to the Court being satisfied as to its jurisdiction) to the Applicant amending the modification application in the respects proposed." In the second sentence, the consent is subject to the Court being satisfied as to its jurisdiction. 1. The Applicant in submissions on s 113 at par 11 (with a similar sentiment in par 15) stated that "it is clear that the Council has already approved the application to amend the modification application (see paragraph [3] of the Council's submissions on s 113)". In par 4 of its submissions of 5 April 2024, the Respondent consents to the deletion of conditions 75(d) and 79(d) but does not consent to the deletion of condition 83. 2. Unfortunately, I am not satisfied that the process under s 113(1) has yet been complied with, although this can readily be done by the Applicant making an application to the Respondent to amend the modification application. 3. There is no evidence that the Applicant has made an application, in any form, to the consent authority to amend the modification application. I do not consider that an application under s 113(1) can be implied to have been made by statements of either party in written submissions filed in the Court on the interpretation and application of s 113(1). The wording of s 113(1) is clear, and there is no scope for ambiguity, that an application must be made to the consent authority, although there is scope to differ as to the form in which the application is to be made. Section 113(3) provides for information that must be included in the application. There was no evidence that the details required by s 113(3) have been provided by the Applicant to the consent authority in any form. The relevant consent authority is the Blue Mountains City Council. 4. The Applicant in submissions (at par 14(2)) agreed that it must apply to the consent authority to amend the modification application, but asserted that the Council "has already expressly through its solicitor indicated its acceptance of the application". I do not read s 113(1), either explicitly or implicitly, as permitting the Council to accept an application in the absence of a formal application, which includes the information required by s 113(3). 5. The Council is the consent authority; the Court is not, nor can ever be, the consent authority: see the designation of the consent authority in s 4.5 of the Environmental Planning and Assessment Act 1979 (NSW), which does not include the Court. The Court, in Class 1 matters, can exercise the functions of the Council as the consent authority in relation to an application for development consent, although not all the functions that a Council could exercise could be exercised by the Court. If the development application is modified, and the modifications are such that they would require renotification to previous objectors or the broader public, then it remains the role of the Council to manage the renotification process. If the matter is a designated development, it would be the Council who advises the relevant government agencies and receives their submissions. If there are large numbers of objectors and the matter is to commence as a s34 conciliation or mediation, then it is the Council who selects the objectors who will present to the Court on site, and introduces those selected persons (although written submissions from all the objectors would be provided to the Court). 6. That in particular matters there is a lack of submissions does not absolve the applicant from having to make the application to the consent authority (i.e. in the present matter, the Council). 7. While expressions such as 'the Court acting as consent authority' or 'the Court standing in the shoes of the consent authority' are frequently used, they should not be taken to imply that the Court is the consent authority, which is never the case. In my view, s 39(2) of the LEC Act is a facilitative provision, but cannot be used before an application has been made to the relevant consent authority. The Court is not the consent authority in any matter. 8. The Applicant must therefore make an application to the Council as the relevant consent authority in this case, as required by s 113(1). The application to amend the modification application need not be a long document, and Council should be able to complete its assessment and determination of the application to amend in a short time. The Council, through Mr Cork, has already indicated it is agreeable to the Applicant amending the modification application as foreshadowed. 9. If the Council agrees to the amendment of the modification application as sought by the Applicant, the modification application will thereby be amended and become the modification application before the Court. The need for the Court to exercise s 39(2) of the LEC Act would not arise. The Court only needs to exercise the power of the Council under s 113(4) to approve the amendment of the modification application, using 39(2) of the LEC Act, if the Council does not agree to the amendment of the modification application. 10. I will therefore direct, by 1 May 2024, the Applicant to apply to the Respondent under s 113(1) to amend the modification application to delete conditions 75(d), 79(d) and 83 and the Respondent, by 6 May 2024, to decide under s 113(4) whether to approve or reject the application. If the Respondent approves the application, as Mr Cork has indicated the Respondent will do, I will grant leave to the Applicant to reopen its case on the modification application as so amended. I will make this order once the parties notify the Court that the application to amend the modification application has been made to and approved by the Respondent. The hearing of the amended modification application 1. As I have noted, the Respondent has indicated it agrees to the deletion of conditions 75(d) and 79(d). No hearing is necessary on those modifications. The Respondent currently opposes the deletion of condition 83. The Applicant has filed written submissions in support of the deletion of condition 83 but the Respondent has not done so. I will therefore direct the Respondent to file its submission on the proposed deletion of condition 83 by 10 May 2024. The hearing of the amended modification application to delete condition 83 can be on the papers, including the parties' submissions on condition 83, unless the parties advise the Court that they wish to be heard orally. 2. I will grant leave to the parties to relist the matter on 2 days' notice to apply for further or different directions. One circumstance where relisting would be appropriate is if the Council does not approve, but instead rejects, the application to amend the modification application. Another circumstance is if the parties seek to have an oral hearing rather than a hearing on the papers. 3. In [12] above, I noted that the Applicant, through Mr Whyte, would make amendments to the VMP and include the arborist's report as an annexure. If this has not been done, the proposed modified VMP with the arborist's report as an annexure is to be filed by 1 May 2024. The Respondent is directed to file written submissions regarding the proposed modified VMP and arborist's report by 10 May 2024. Orders 1. The Court orders: 1. The Applicant is directed to apply to the Respondent under s 113(1) of the Environmental Planning and Assessment Regulation 2021 (2021 EPA Regulation) to amend the modification application made on 21 December 2021 by 1 May 2024. 2. The Respondent is to approve or reject the application to amend the modification application under s 113(4) of the 2021 EPA Regulation by 6 May 2024. 3. If the Applicant applies under (1) and the Respondent approves the application under (2), leave is granted to the Applicant to reopen its case on the modification application as amended. 4. The Respondent is directed to file written submissions on the deletion of condition 83 by 10 May 2024. 5. The modification application as amended will be heard and determined on the papers. 6. Leave is granted to the parties to relist the matter on 2 days' notice to apply for further or different directions. 7. The proposed modified Vegetation Management Plan (VMP) and arborist's report are to be filed by 1 May 2024 and the Respondent is directed to file written submissions regarding the proposed modified VMP and arborist's report by 10 May 2024. …………………….. P Adam Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2024