Upcoming changes to EPA Act to reinstate modifications to conditions of development consent

Applicants in NSW will soon regain the ability to seek modifications to, or deletion of, specific conditions of consent without needing to modify the approved development itself. Consent authorities will also have their power to assess and approve such applications formally reinstated under upcoming changes to NSW planning laws.

The modification or deletion of conditions of consent had long been a common and utilitarian practice through applications made under sections 4.55 or 4.56 (and their precursors) of the Environmental Planning and Assessment Act 1979 (EPA Act). This had often been part of the post-consent process, as the effect of certain conditions became more apparent, in the delivery of development.

However, in 2021 the legal landscape for this practice changed following the decision of the NSW Court of Appeal in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 (Buyozo).

In Buyozo, the Court held (amongst other things not relevant here) that:  

• While sections 4.55 (excluding subsection (1)) and 4.56 refer to the modification of development consent, the use of terms such as “substantially the same” and “minimal environmental impact”, and the requirement to consider relevant matters under section 4.15(1) of the EPA Act, mean that modification to the actual development to which the consent relates, and some environmental impacts, must occur;

• A modification is only available where some change is proposed with respect to the development for which consent was granted;

• In this case, the proposed modification was just a change to a condition of consent – it didn’t actually alter the development itself or have any environmental effects.

There was, naturally, some lag time following the Buyozo decision where the previous practice of modifying or deleting conditions prevailed but as greater knowledge and understanding of Buyozo has spread, the old practice has largely ceased.

While the Court’s interpretation of the EPA Act in Buyozo is not disputed (it highlighted a convention held not based in the statute), it has led to an unsatisfactory situation where conditions alone cannot be modified or deleted in themselves, even where they may be of no utility or unreasonable.

Through the Environmental Planning and Assessment Bill 2025 (EPA Bill), introduced earlier this year, the NSW Government proposed changes to sections 4.55 and 4.56 of the EPA Act. Among other amendments, the changes aim to clarify that the power to modify or delete consent conditions exists on its own. This means a modification application could be made even if it doesn’t propose any changes to the actual development itself or cause any environmental impacts.

On 7 May 2025, the EPA Bill (slightly amended from its original form but not in relation to subject of this article) was passed by Parliament.

Relevantly, the EPA Bill will:

• Amend section 4.55(1A) of the EPA Act so that the current requirement that proposed modifications be of “minimal” environmental impact be replaced with the requirement that proposed modifications be of “no or minimal” environmental impact – acknowledging and addressing the Court’s position in Buyozo that a modification or deletion of a condition (only) may have no environmental impact;

• Amend section 4.55(1A)(b) and (2)(a) of the EPA Act so that any reference to “substantially the same” will become (our emphasis) “the same or substantially the same” – acknowledging and addressing the Court’s position in Buyozo that a modification or deletion of a condition (only) may have no change to the development for which the consent was granted (and in fact be the same development, rather than substantially the same development);

• Add a new subsection (5) to section 4.55 of the EPA Act to provide:

To avoid doubt, a consent authority is not prevented from modifying a consent under subsection (1A) or (2) merely because the modification only modifies a condition of consent and would not result in a change to the development the subject of the consent.

• Add a new subsection (1B) to section 4.56 of the EPA Act to similarly provide:

To avoid doubt, a consent authority is not prevented from modifying a consent under this section merely because the modification only modifies a condition of consent and would not result in a change to the development the subject of the consent.

The effect of these changes will be to reinstate the previous practice and formally permit the modification or deletion of conditions of consent only, without the need for any modification to the development for which the consent was granted.

These amendments will come into force upon assent of the EPA Bill, which is likely to occur imminently.

Applicants and councils alike will be comforted by the return of the opportunity to modify or delete conditions of consent where, upon reflection or better understanding of their effect, such is appropriate.

Authors: Steven Griffiths & Angelina Gorgovski

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.