19 July 2021

Applicants given power to amend modification applications

The NSW Government has amended the Environmental Planning & Assessment Regulations 2000 (Regulations), making it expressly clear that amendments to modification applications to development consents can be made at any time before a final decision is made.

The amendment came into effect on 14 July 2021.

This amendment arises following the recent NSW Court of Appeal decision of ACQ Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 (Dartbrook).

Background

In Dartbrook, Preston CJ, Chief Judge of the Land and Environment Court, found that there is no power, express or implied, for an applicant to amend a modification application lodged but not yet determined.

In doing so, Preston CJ expressed his view that previous Land and Environment Court decisions holding otherwise, were wrongly decided.

Despite Preston CJ’s decision being a minority decision, the Land and Environment Court has been adopting his reasoning and refusing to allow amendments to modification applications (see Justice Robson’s decision in Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69).

The Dartbrook decision has caused ambiguity in the development industry, with both developers and consent authorities uncertain of how to deal with modification applications.

The Amendment

With the ramifications of the Dartbrook decision being so significant, it called for urgent legislative reform.  This is why only six weeks after the handing down of Dartbrook, the government has already amended the Regulations.

The Minister for Planning Industry and Environment, Mr Rob Stokes, noted in the Explanatory Note released with the amendment the following four objectives:

  1. provide that a consent authority may request additional information from an applicant for modification of a development consent,

  2. set out the days that are not included in calculating the period for deemed refusal of a modification application,

  3. provide for the amendment of a modification application,

  4. provide for the amendment of a request to modify the Minister's approval for State significant infrastructure.

Objective 1 is provided through new Regulation 121A, being of similar wording to existing Regulation 55 which allows a consent authority to request additional information in relation to development applications.

Adopting the same time frames that already existed for development applications, including the ‘stop the clock provisions’, Objective 2 is set out at new Regulation 122B.  In summary, the relevant time periods are as follows:

  • A consent authority must make the request for additional information within 25 days after the date of lodgement of the modification application;

  • The days between the consent authority making the request and the applicant either providing the information or notifying that information is not to be provided is not to be included in calculating the deemed refusal period;

  • The day of and following lodgement of the modification application are not to be included in calculating the deemed refusal period;

  • The deemed refusal period of 40 days applies to modification applications.

Objective 3, being the core focus of the amendment, is provided for through new Regulation 121B which expressly provides for modification applications to be amended.

Whilst amending the legislation to clarify the ability to amend modification applications, the government also clarified the ability to do so with respect to State Significant infrastructure applications through new Regulation 196B.

What this means

These amendments expressly allow applicants to amend modification applications lodged but not yet determined – something they thought was already possible.  

The amendments to the Regulations now provide clarity and a framework to abide by for consent authorities in assessing and determining modification applications. It is important that Councils are aware of these new powers under the amendments to the Regulations and be particularly cautious of the applicable time periods.

Authors: Laura Raffaele & Dennis Loether