Posted on February 20, 2011 by Lindsay Taylor
Modification of Development Consents and Planning Agreements
It is now well established that a condition requiring a contribution under s94 of the Environmental Planning and Assessment Act 1979 cannot not be imposed on a modification application under section 96 of that Act (see Peter Duffield and Associates Pty Ltd v Canada Bay City Council (2002) 124 LGERA 309).
It is also now well established that a s94 condition imposed on the grant of a development consent can be modified under section 96 (see Arkibuilt Pty Ltd v Ku-ring-gai Council (2006) 148 LGERA 85).
The situation relating to modification applications under s96 and planning agreements under s93F is quite different.
Section 93F (1) describes a planning agreement to be a voluntary agreement or other arrangement entered into between a planning authority and a person (a developer) who has made, or proposes to make, a development application.
Section 93I(3) provides that a consent authority can require a planning agreement to be entered into as a condition of a development consent but only if it requires a planning agreement that is in the terms of an offer made by the developer in connection with the development application.
In Progress & Securities Building Pty Ltd v Burwood Council (No 2) (2008) 158 LGERA 102, Jagot J in the Land and Environment Court held that a condition authorised by section 93I (3) can be imposed on a modification approval and that any such condition will be a condition of development consent within the meaning of section 93I (3) of the EP&A Act. Her Honour said [at par. 22]:
…if a developer makes an offer to enter into a planning agreement in connection with a modification application, the offer will necessarily also be in connection with a development application (albeit a development application that has resulted in the grant of development consent). Nothing in s 93I(3) limits the power of a consent authority to then impose a condition on the approval of the modification application requiring entry into the planning agreement in terms of the offer so made. Any such condition will be a condition of development consent within the meaning of s 93I (3).
The difference between the rules relating to the imposition of s94 conditions and s93I (3) planning agreement conditions in relation to modification applications under s96 is purely one of statutory construction.
- Section 94 conditions can only be imposed on the grant of a development consent (see s94 (1) and (3)) and the modification of a development consent is not the granting of a consent (see s96 (4)).
- Section 93I(3) by contrast, confers the power to impose a condition requiring a planning agreement to be entered into in relation to an offer made by a developer in connection with a development application. In Her Honour’s view, a modification application necessarily meets this description.